Yes, held the Advocate General (AG). When considering the definition of 'working time' in the Working Time Directive, regard should be had to the quality of the time that the worker may enjoy when on 'stand-by' duty.
Ville de Nivelles v Matzak
Mr Matzak is a retained firefighter in Belgium. He is required on a rota basis to be available on stand-by duty, for one week out of every four, during the evenings and at the weekend. Time spent on stand-by duty is unpaid,
Mr Matzak is only paid in respect of time when he is on active service. When on stand-by duty, Mr Matzak must remain contactable and report to the fire station as soon as possible and in any event within no more than eight minutes. Mr Matzak brought proceedings against his employer, arguing that he is entitled to be paid for the time spent on stand-by duty as he had only received pay for active service.
What Is Considered as 'Working Time'?
The definition of 'working time' should not be interpreted as automatically extending to workers who are required to be on stand-by duty. It is necessary to consider the quality of the time that the worker may enjoy when on stand-by duty, for example, his ability to devote himself to his own interests and family. The overriding importance in this case was the quality of the time spent by Mr Matzak on stand-by duty, rather than the precise degree of required proximity to his place of work. The AG distinguished this case from a number of previous decisions, in which it was held that the deciding factor in determining what is and is not working time was the "requirement to be present at a place determined by the employer to provide the appropriate services immediately".
The AG concluded that it is a matter for the member states to decide, on the individual facts of a particular case, whether or not time spent on stand-by duty is to be classified as working time.
What Does the Law Say in the UK?
The Working Time Regulations 1998 implement the Working Time Directive. The definition of 'working time' in the Working Time Regulations 1998 is relevant to rest periods and rest breaks as distinct from pay which is governed by the National Minimum Wage Regulations.
- The AG's opinion in this case departs from previous case law which focuses on the worker's location during periods of time on stand-by and whether such location is determined by the employer.
- The AG recommends that the quality of time and degree of freedom that a worker may enjoy when on stand-by duty are to be considered when determining whether stand-by duty constitutes 'working time' under the Working Time Directive. The question as to whether on-call or stand-by time constitutes working time is a question that continues to be debated through the courts.
- Employers should be aware that on-call or stand-by time even where spent in a worker's own home or at a place not otherwise dictated by the employer could qualify as working time where their freedom to engage in rest activities is severely impacted if the ECJ follows the AG's opinion.
The ECJ must now decide whether to follow the AG's opinion or form a different view. We will keep you updated about developments. For more information, please contact Jenny Marley in our Employment Law team on 0117 314 5378.