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On-call and standby shifts at home count as ‘working time’, CJEU finds

27 Feb 2018 By Emily Burt

Firefighter case ruling could have wide-ranging implications for employers with ‘on call’ staff

Time spent ‘on call’ by workers or employees carrying out duties outside of their workplace is to be counted as ‘working time’ – even if the worker is not actively engaged in work at the time – the Court of Justice of the European Union (CJEU) has found in a new case

The advocate general considered the case of Mr Matzak, a volunteer firefighter of the Nivelles fire service groups in Nivelles, Belgium. Volunteer firefighters are involved in operations, standby services and other duties at the fire station, which are arranged by roster at the start of each year. They are paid an annual allowance for their standby work. 

In December 2009, Matzak brought judicial proceedings against his employer for a failure to pay sufficient remuneration for his services as a volunteer firefighter during his years of service. In particular, he claimed that his standby services should be categorised as working time. 

On 22 March 2012, the Nivelles Labour Court upheld Matzak’s case, but Nivelles town appealed the ruling at the Brussels Higher Labour Court. 

By a 14 September 2015 judgment, the Higher Labour Court court partially upheld the town’s appeal, as under Belgian law “volunteers in the public fire services and the rescue zones as provided for in the law [...] on civil security and volunteers in operational civil protection units do not fall under the definition of workers”. 

However, the CJEU was asked to rule on the correct definitions of the Working Time Directive to decide whether Matzak’s standby services could be classed as working time. 

The court was invited to consider whether volunteers should be categorised as workers and included in regulations under the directive, which lays down minimum health and safety requirements for working time, such as daily and weekly rest periods and annual leave. 

Under the directive, ‘working time’ refers to “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice”. It applies to all activity sectors, including the public and private sectors. ‘Rest period’ refers to any period not classed as working time. 

The CJEU established that Matzak was a worker. Although he held a voluntary, rather than a professional, status in his country, this did not affect his definition as a worker according to case law. The nature of an employment relationship under national law cannot determine whether or not the person is a worker under EU law. 

The court was also asked to rule on whether Matzak’s standby work should be considered to be working time under the directive, despite his being at home while on call, “given the constraints on the worker at the time preventing him from undertaking other activities”. 

It found that, if the standby period – in the form of physical presence at the place of work – were excluded from the concept of working time, it would seriously undermine the objective to ensure workers’ safety and health by granting them adequate rest periods and breaks.

“The decision in Ville de Nivelles v Matzak sheds more light on the difficult issue of when an employee is working when on call,” Barry Stanton, head of employment law at Boyes Turner, told People Management

In an earlier case, Truslove v Scottish Ambulance Service, “the Employment Appeal Tribunal held that a requirement to be within three miles of a particular location was a significant restriction that prevented them enjoying the quality of rest anticipated by the Working Time Regulations”, said Stanton. 

“There have been a number of prior CJEU decisions where working time has included time spent at the employer’s place of work, travelling between their home and customer, and where there was no fixed place of work. In Truslove, the decisive factor was being present at a place determined by the employer – travelling to meet customers.” 

While Matzak spent his standby duties working at home, he was obliged to respond to calls from his employer within eight minutes, and to be physically present in the place determined by his employer.

Under such circumstances, it was impossible for the worker to choose where they wanted to be at that time, rendering the working hours within the worker's normal working duties, the CJEU said. 

The obligation to remain physically present at the place the employer determined – and the geographical and temporal constraints resulting from the need to reach his place of work within eight minutes – objectively limited the opportunities that a worker in his circumstances had for his own personal interests, the court found. 

This differed from a worker who must simply be at his employer’s disposal to ensure it is possible to contact him during standby duty.

"This case is important for employers with workers who are required to be ‘on call',” Graham Irons, partner at Howes Percival, said. 

“The greater the restrictions on a worker when on call – but not working – the more likely it is that the on-call period will be regarded as working time. This may then have implications in relation to compliance with rest periods, working hours and the national minimum wage." 

Stanton said: “The greater the restriction placed upon employees in terms of where they can be, the more likely it is that they will be found to be working for the purposes of the Working Time Regulations. 

“Employers should consider carefully whether they need to place significant fetters upon employees’ activities when they are on-call.”

A recent poll conducted by the Institute for Public Policy Research found that 73 per cent of the public supported retaining or strengthening the Working Time Directive, while just 12 per cent were in favour of relaxing or removing regulations. 

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