Is stand-by time working time?
22 March 2018
The European Court of Justice (ECJ) has considered whether time spent on stand-by at home should be regarded as working time for the purposes of the Working Time Directive.
Ville de Nivelles v Matzak, ECJ
The claimant, a retained firefighter in Belgium, was required to be on stand-by during evenings and at the weekend for one week out of four. He had to remain contactable during stand-by time, and be able to report to the fire station within eight minutes. Stand-by time was unpaid.
The claimant brought proceedings against his employer, claiming that he should be paid for stand-by duty. The Brussels Higher Labour Court referred a number of questions to the ECJ.
The ECJ considered the circumstances when a worker on stand-by must be regarded as working, namely when the worker is required to be physically present and available at a place determined by the employer. If the worker is not required to be present at the place of work, only time spent in the actual provision of services should be treated as working time.
However, in this case the worker was not simply required to be contactable but had to respond to calls within eight minutes. This placed significant constraints on his location and limited his opportunities to pursue personal and social interests. For this reason, the ECJ determined that the stand-by time should be regarded as working time for the purposes of the Working Time Directive.
This decision extends the meaning of working time to include off-site stand-by time in circumstances where a worker’s freedom to engage in non-work activities is severely impacted. In the ECJ’s view, the requirement to attend work within eight minutes was a sufficient restriction. The difficulty for employers will be in determining whether any similar restrictions placed on workers during stand-by time will be sufficient to render the time ‘working time’.
This article is from the March 2018 issue of Employment Law, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at March 2018.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at March 2018.