Author: Andrew Brown, Partner at Anderson Strathern Solicitors (see website)
The Advocate General for the European Court of Justice has given an opinion on whether time spent by workers on stand-by away from the workplace counts as “working time”.
Ville de Nivelles v Matzak
What was the background?
The employee was a firefighter in Belgium. He was occasionally required to stay on stand-by.
In the event that he was called out to work during on-call periods, he had to arrive at the fire station no later than 8 minutes after being called. That meant that he had to live near the fire station and also that he was restricted in how he could spend his time while on-call. For time spent on-call he was not paid.
He made a claim that he should be paid for the time that he was required to spend on-call on the basis that it was “working time” under the Working Time Directive.
The European Court of Justice (ECJ) was asked for guidance on the interpretation of “working time” as it applies in this context.
What was the Advocate General’s opinion?
The opinion provided the following guidance to determine what “working time” is:
- Time spent on-call will not always be “working time”.
- This will be the case even when the employee is required to be at a particular place close by to the workplace and required to immediately carry out the duties once called.
- How near to the workplace the employee needs to be while on-call will be relevant, but not decisive.
- The quality of time and degree of freedom which is afforded to an employee when they are required to be on-call is the most important factor.
- The more the employee is restricted by the employer in carrying out normal activities (such as spending time with their families), the more likely it is that the time will be “working time”.
ECJ decisions usually follow the Advocate General opinion.
Whether time is “working time” will depend upon the facts and circumstances of each case, but the guidance provided by the courts is helpful in assessing the importance of the various factors at play.
Often employers can provide workers with their right to rest but at no cost, by structuring the shift patterns as necessary. Normal days off and holidays all count as “rest”.