Under the Working Time Regulations, workers are working when they are at their employer’s disposal and carrying out their activities or duties. This raises the question of workers who are on call or standby. They may be called upon at short notice to perform work for the employer, but have more freedom to dispose of their own time than when engaged on their normal duties.
Previous decisions of the Court of Justice of the European Union have emphasised the location of the worker while on standby. Workers who are obliged to wait on the employer’s premises to be called upon to work have been held to be working for the whole period even if given sleeping facilities to use during any downtime.
In Ville de Nivelles v Matzak the Court appears to go one step further than that. The case concerned a Belgian volunteer firefighter and the key question was whether he could be regarded as working when he was on standby. He was not required to be on call at the local fire station; instead he was told to wait at home and, if called, to get to the fire station within 8 minutes.
The CJEU held that this nevertheless met the definition of working time. The Court held that the ‘determining factor’ in on-call cases was a requirement to be physically present at a place determined by the employer and to be available to provide immediate service if required to do so. The firefighter was therefore working while ‘on call’ because he was required to stay at home and respond to calls within a very short time frame.
This was different from a standard ‘on call’ system where the worker had to be accessible to the employer, but not required to remain at a particular location. In those circumstances the worker has more freedom to pursue his or her own interests and activities and periods of stand-by do not count as working time.
The Court was at pains to stress that their interpretation of the Working Time Directivedid not affect whether or not the worker was entitled to be paid during working time – that was a matter of domestic law.