02 March 2018
Working time is defined as any time during which a worker is:
There has been a lot of debate and varying case law over what counts as being at an employer’s disposal and what the situation is in respect of being on call. Previous case law has confirmed that on call time is working time if the worker has to remain on site even if they are not required to work during that time and are resting. Some periods of travel by a worker have also been classed as working time. In all of these cases the requirement to be at a place chosen by the employer has been an important factor. So what about where the worker is at home?
In the case of Ville de Nivelles v Matzak the Court of Justice for the EU (CJEU) has decided that time spent by a worker who was on standby duty at home was part of the normal working duties and thus was working time.
Mr Matzak was a firefighter in Belgium. When on standby duty he had to remain contactable and be able to report to his station within eight minutes. The result of this is that he had to live near the station and restrict his activities when on standby to ensure he could meet the 8 minute requirement. Mr Matzak was not paid for his time spent on standby.
Mr Matzak bought a claim against his employer seeking payment for his time on call. In deciding this claim the court referred several questions to the CJEU. One of those questions was whether the time spent at home on standby was working time or not. The CJEU held that the requirement to respond to calls within 8 minutes meant that he had to remain physically present at a place determined by his employer (namely his home) and had such restraints on what he could do personally/socially that this time must be considered to be working time.
It would appear from this case that where an individual’s freedom to pursue personal activities during on call time is severely impacted then that will likely be working time. However, Mr Matzak’s situation should be distinguished from someone’s who while on call only needs to be contactable by their employer or able to attend work but within say 2 hours. The difficulty will be where to draw the line in order to determine when someone is severely impacted. The greater the restrictions on an individual on call the more likely the time is to be considered working time.
This case was very much determined by its own particular facts, applying well-established principles from previous cases. However, employers should ensure they have clear objectives as to what time they want to be classed as working time or not and then plan their requirements for the on call individual accordingly. Clear policies and guidance on this will assist.