Does an employee being on call count as working time?

Two recent cases have highlighted the challenges involved in determining what does and does not count as working time, as Gemma Wilson explains

Does an employee being on call count as working time?

The law around what constitutes ‘working time’ for the purposes of pay and breaks can be confusing, and there have been seemingly conflicting legal decisions involving travelling salespeople, nurses and care workers.

Two recent cases that came before the European Court of Justice (ECJ) examined this issue, with different outcomes.

Following Brexit, these ECJ decisions are not binding on UK courts. However, employment tribunals may still have regard to post-Brexit ECJ case law when it is relevant to any matter before the court of tribunal.

In the recent case of MG v Dublin City Council (Case C-214/20), the ECJ considered the standby periods of a part-time firefighter who was ‘on call’ 24 hours per day, seven days per week (except when he was taking annual leave). He could be called to assist with an emergency in no less than 10 minutes, and was required to participate in at least 75 per cent of the fire brigade’s interventions. During this time, he was permitted to carry out other work.

He argued that the time he spent ‘on call’ should be classified as ‘working time’ under the Working Time Directive. If this could be established, it was likely that there had been a breach of the rules regarding daily and weekly rest and maximum weekly working time under the Working Time Directive and under the Irish implementing laws.

When considering this case, the following were of particular importance to the ECJ: 

  1. The firefighter was able to, and did, participate in other professional activities. In this case, he was a self-employed taxi driver;

  2. The firefighter was not required to stay in one place when he was ‘on call’;

  3. The consequence of the firefighter not attending within the specified time was simply that he did not get paid. There were no other consequences. 

The question to be considered by the referring court was whether the firefighter was subject to constraints that limited his ability to manage his time during the ‘standby’ time, when his services as a retained firefighter were not required. 

The ECJ concluded that because the firefighter was able to carry out another professional activity during the standby time and was not obliged to attend the emergency callouts, the standby time was not working time because it did not significantly affect his ability to manage his own time during that period. 

The rules surrounding the working hours of employees who are on standby are often very complex and fact sensitive. Because of this, time spent on call or standby has been the subject of debate which has meant that some decisions may appear unclear or contradictory.  

For example, just months before the decision in this case, the ECJ considered another case (XR v Dopravní podnik hl m Prahy) which again concerned a firefighter, standby time and the Working Time Directive. In this case, a firefighter could be called back from his unpaid rest breaks with two minutes’ notice.

He argued that this was therefore ‘working time’. In this case, the ECJ agreed that the rest breaks should be working time under the Working Time Directive. 

One of the deciding factors was that the arrangements significantly impeded the worker’s ability to manage his own time, and devote that time to other matters. That is where it appears to be distinguishable from the MG v Dublin City Council case

The ECJ also reiterated that the driving force behind the Working Time Directive is achieving genuine, uninterrupted breaks to ensure health and safety. A state of ‘permanent alert’ was not considered to be compatible with this.

These two decisions, similar in facts but different in outcome, emphasise the importance of seeking legal advice if there is any uncertainty surrounding standby time or breaks and whether this constitutes ‘working time’. 

Gemma Wilson is a solicitor in the employment practice at Glaisyers ETL