Stand-by time – No play, more pay

6 March, 2018

Legal update: “on-call” time at home is “working time” where a worker is significantly restricted from engaging in other non-work interests, such as family time and hobbies.

The European Court of Justice (ECJ) last week considered whether time spent on-call away from the workplace was capable of amounting to working time. The decision further develops the ever changing law governing what constitutes “working time” under the Working Time Regulations 1998.

The case concerned a retained firefighter, Mr Matzak, who is required to be available on-call for work at certain periods during the week. While on stand-by, Mr Matzak must remain contactable and, if required, report to the fire station as soon as possible and in any event within no more than 8 minutes. Mr Matzak must therefore live in close proximity to the fire station and is restricted from carrying out his hobbies and interests. Mr Matzak is not paid for time spent on-call.

The ECJ’s decision confirms that where a worker’s freedom to engage in non-work activities during on-call time spent at home is severely impacted, then that time must be working time under the Working Time Regulations. Interestingly, the Advocate General’s opinion and the ECJ’s decision differed on the importance of necessary proximity to the workplace. The ECJ found that the necessary proximity to the workplace was of critical importance.

Domestic courts who must apply this decision domestically may find it challenging determining what amounts to “significantly reducing” opportunities to engage in non-work related activities.

Previous decisions in the context of ‘on-call’ workers made it clear that the “decisive factor” in determining whether the definition of working time is satisfied, is the requirement to be present at the place determined by the employer and to provide the appropriate services immediately in case of need. This case demonstrates how the law is developing with power slowly shifting to the employee.