'On call' at home and whether working time
Ville de Nivelles v Matzak
The nature of the restrictions that are placed on a worker will determine whether ‘on-call’ time qualifies as ‘working time’.
The issue of whether time spent on call is working time has been the subject of various European decisions over the last decade.
Mr Matzak is a firefighter in Belgium. He is contractually required to be on standby, for one week out of every four, during the evenings and at the weekend. When on stand-by duty Mr Matzak must remain contactable and, if necessary, report to the fire station as soon as possible, and in any event within no more than eight minutes under normal conditions. This means that he must live near the fire station and his activities are necessarily restricted when he is on stand-by duty. Time spent on stand-by duty is unpaid. He brought proceedings against his employer saying that he should be paid for time spent on standby-duty. The case ended up at the European Court of Justice (ECJ) for interpretation of the relevant provisions of the Working Time Directive (implemented in the UK via the Working Time Regulations 1998) as they impacted his circumstances. Note that the directive itself does not entitle him to be paid – that is a matter for national legislation.
The ECJ held that stand-by time which a worker spends at home while being duty bound to respond to calls from his employer within eight minutes, which significantly restricts the opportunities for other activities, must be regarded as ‘working time’.
Where a worker has to be physically present and available at a place determined by the employer, this must be regarded as ‘working time’. But the situation is different where the worker is required to be permanently accessible but not present at the place of work. In those circumstances – because the worker can manage his or her time and outside interests with fewer constraints – only time linked to the actual provision of services must be equated with ‘working time’. The intensity of work and the output required do not determine what constitutes ‘working time’.
Here Mr Matzak is not simply required to be contactable while on stand-by duty. He is obliged to respond to calls within eight minutes and thus be physically present at a place determined by his employer – albeit that place is his home rather than workplace. These geographical and temporal constraints objectively limit Mr Matzak’s opportunities to pursue personal and social interest.
Link to judgment: http://www.bailii.org/eu/cases/EUECJ/2018/C51815.html
This case was very much determined by its own particular facts, applying well-established principles from previous cases. The key to the court’s decision is that the employee was required to be at his employer’s workplace within eight minutes which severely limited his ability to manage his own time and activities. In the light of such a constraint and control of the employee’s time by the employer, the time that he was required to be available constituted ‘working time’.