Does being on-call count as ‘working time’?

Karnis Mullings examines a recent ECJ case on the Working Time Directive

In Ville de Nivelles v Matzak, the claimant, Mr Matzak, was a volunteer firefighter based in Belgium. He was part of a standby rota. When on call he had to be contactable and remain within eight minutes of his workplace, which meant that he had to live near the fire station. The standby time was not paid.

The case is not unusual in relation to the rota – many employers with unpredictable peaks in demand operate standby systems. Standby arrangements are intended to strike the balance between providing round the clock cover without paying any more than is needed. 

However, Matzak believed that he should be paid when on call and brought a claim on that basis. When his claim reached the European Court of Justice (ECJ), one of the questions they had to determine was whether his standby time counted as ‘working time’.

Working time is defined as any time when a worker is working, at his employer’s disposal and carrying out his activity or duties. But what about time that a worker can use as they please – provided they are no more than eight minutes away from their workplace – does that count?

The ECJ decided that the on-call time was working time. This was despite the absence of any work being done. It based this decision on the fact that Matzak didn’t really get to decide where he spent his on-call time and could be required to be at work at short notice. It concluded that these restrictions limited his chance to pursue his own interests.

For some, this decision was a step too far. There is no suggestion that he was just sat waiting for the phone to ring. He could do what he wanted during this time; any hobbies in the local area, socialising with friends and family or even sleeping – in his own bed. Essentially, he could be paid for doing nothing, or at least, on the face of it, nothing that would benefit the employer. 

But this misses the point. There was a benefit to the employer. He was providing a service by being available in the event of a call-out and this service was critical to the employer’s operation. It is a misuse of the employer’s authority to require workers to be at their behest without any recognition of that fact. It could be seen as a variation of the gig economy that has recently been scrutinised and criticised in equal measure. The decision therefore provides a welcome reprieve from the increasing pressures for an ‘on demand’ workforce.

For employers that operate standby rotas, this decision will necessitate a review of the arrangements. Where there are restrictions on location and response time for on-call staff, the first question is whether those restrictions stop the worker using the standby time for their own purposes.

If they do, consider whether the restrictions are actually necessary; sometimes these arrangements have arisen from custom and practice or convenience but do not reflect the demands of the role/organisation.

If it is not possible to cover standby time without significantly restricting workers, then employers should ensure that, once standby time is included, staff are still getting the necessary rest breaks and not exceeding working limits unless the necessary opt-outs are in place. 

Karnis Mullings is legal and professional services manager and an employment lawyer at Vista