Employees on-call and working time

There have been numerous cases in European and local courts about whether time spent on call or time when an employee must be available but not actually working falls into the definition of working time.

In a recent case the European Court of Justice have considered whether time spent on stand-by duty by retained firefighters was working time.

The Law

In the UK the Working Time Regulations brings into effect in UK law the Working Time Directive, legislation from Europe that deals with working time, rest breaks, holiday etc.

Within the Working Time Directive, Article 2 defines working time as any period which the worker is:

a) Working,
b) At the employer’s disposal,
c) Carrying out their activities or duties in accordance with national laws and/or practice.

Rest period is defined as any period which is not working time.

The Facts

The case was brought by Mr Matzak from Belgium who is a retained firefighter in Belgium.

In accordance with his role as a retained firefighter Mr Matzak was required to be available on call one week out of every four, during evenings and at the weekend.

Whilst he was on call Mr Matzak was required to be contactable and able to report to the fire station within 8 minutes if called upon.

Time spent on call is unpaid.

Mr Matzak complained to his local courts that he should receive payment when he was on call. This case was referred to the European Court of Justice on a number of points related to the Working Time Directive including the following question:

Does the Working Time Directive prevent home-based on-call time from being regarded as working time when, although the on-call time is undertaken at the home of the worker, the constraints on him during the on-call time (such as the duty to respond to calls from his employer within eight minutes) very significantly restrict the opportunities to undertake other activities?

The Decision

The European Court of Justice decided that the time spent on call in these circumstances must be regarded as working time.

The key issue was that Mr Matzak was required to be available within 8 minutes of a call and therefore he was severely restricted on where he could go and what he could do during this time. He could not for example undertake any social or personal activities or if he did it was very restricted.

Because of the restriction on him, which is understandable given his role as a retained firefighter, this was working time and could not be compared to other types of worker on call who simply had a duty to be available and contactable during on call time.

Points to Note

The reason that the European Court decided that Mr Matzak’s on-call time was working time was due to the fact the conditions of his on-call time were ‘significantly restricting’. What constitutes ‘significantly restricting’ will of course depend on the circumstances of the particular case, and therefore it is important to take care when deciding whether you need to pay for on call time.

In the UK, according to www.fireservice.co.uk retained firefighters are required to be available within 5 minutes of a call out and they receive a retained fee based on the hours per week that they are contracted to be on call, with extra payment for responding to calls. It therefore would appear that the issue faced by Mr Matzak is not the same for retained firefighters in the UK.

Action to Take

1) If you have any periods within which employees are required to be ‘available’ for you that are not obviously ‘working time’ and you are concerned about your legal obligation it is important to get advice and evaluate the situation before any issue or dispute arise.

Case Link

Ville de Nivelles v Matzak – CJEU – 2018

This article was written and researched by Alison Colley, Solicitor.

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