Opinion

Does 'Stand-by' time class as 'working time'?

3rd April 2018

In the case of Ville de Nivelles v Matzak the European Court of Justice (ECJ) decided on whether time spent at home being on call, and having to be at the workplace within eight minutes of a call, counted as working time.

Article 2 of the Working Time Directive defines working time as any period during which the employee is:

  • working
  • at the employer’s disposal
  • carrying out their activity or duties in accordance with the national laws and/or practice.

A rest period is also defined as time that is not working time.

In previous case law it was decided that “on-call” time amounts to working time if the employee is required to be in the workplace and not at home. In this case the claimant was at home when on call, but had to be ready to leave and get to the station within eight minutes if called.

The facts

Mr Matzak is a retained firefighter and is required to be on call every once in four weeks. Whilst he is on call he must be available and must be able to get to the station within eight minutes of a call. He must therefore live in close proximity to the fire station and restrict his activities so that he will be ready to leave when called. Mr Matzak is not paid for the time spent on call.

Mr Matzak brought a claim against his employer stating that he should be paid for the time that he is on call.

The ECJ considered the question:

"Does [Directive 2003/88] prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within eight minutes) very significantly restrict the opportunities to undertake other activities?"

The Decision

The ECJ held that stand-by time which is spent at home whilst being required to be available for work, and also being significantly restricted from carrying out activities, must be regarded as working time.

Mr Matzak has to physically remain at home or be within eight minutes of the station and was therefore under geographical and temporal constraints. This was found to limit the opportunities which workers have to devote themselves to their personal and social interests. This differs from a worker who, whilst on standby, must just be contactable.

Where a worker is restricted in taking part in personal and social interests then this is classed as working time. The ECJ decided that the quality of time the worker may enjoy when on-call should be taken into consideration rather than where they are based.

 

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