Time spent "on call" to be viewed as working time when the worker's ability to undertake non-work activities is significantly restricted

Time spent "on call" to be viewed as working time when the workers ability to undertake non-work activities is significantly restricted

In Ville de Nivelles v Matzak (C-518/15) the European Court of Justice determined that time spent on stand-by counts as working time under the Working Time Directive when the obligations placed on a worker during that stand-by time significantly restrain that worker’s ability to pursue non-work activities.

 

Facts

The claimant, Mr Matzak, was a firefighter in Belgium. He was required to be on stand-by at evenings and weekends one week out of every four. Whilst on stand-by he had to remain contactable and be able to reach the fire station within 8 minutes. This requirement meant Mr Matzak had to live within an 8 minute radius of the fire station and severely restricted what he could do while on standby.

His employer refused to compensate Mr Matzak for his time spent on call as it did not consider it to be working time. Mr Matzak brought proceedings in the Belgian courts who referred the matter to the ECJ.

Decision

The ECJ found that the requirement for Mr Matzak to remain within 8 minutes of his workplace whilst on stand-by very significantly restricted his ability to undertake other activities and therefore this time had to be regarded as working time under the Working Time Directive. The court used the significance of these restraints to draw a distinction between Mr Matzak and a worker who only had to be contactable during stand-by time.  In the latter case, time spent on stand-by might not be working time.

Comment

According to the ECJ, the key factor in determining whether stand-by time counts as working time is the quality of that time and the severity of the restrictions placed on the worker whilst on call. The more restricted the worker is from carrying out non-work activities whilst on call, the more likely it is that the time they spend on stand-by will be deemed to be working time.

Whether stand-by time is working time is therefore highly fact dependant and employers should carefully consider the nature of stand-by time and the effect on their workers on a case by case basis.

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Abigail Etchells

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