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'Period of Standby' Not Considered Proper Working Time

on Friday, 19 March 2021.

The European Court of Justice (ECJ) holds that a 'period of standby' is not proper working time under the Working Time Directive.

The ECJ has recently ruled that a period of standby would not, on these particular facts, be working time under the Working Time (the EU legislation from which the Working Time Regulations 1998 in the UK are derived).

The facts of the case in question related to a technician in Slovenia who was tasked with working on television transmissions in remote mountain areas. The nature of the work and the remoteness of his workplace from where he lived made it necessary for him to stay in the vicinity of the sites.

The employee was required to be on standby to respond to issues at the sites. Whilst he was not required to remain at the site during a period of standby, he was required to return to it within one hour if required. This effectively required him to remain at the sites during standby periods.

The technician argued that time he spent on standby during which he had to be contactable by telephone and able to return to the transmission centre within one hour was working time. Even though there was no obligation for him to remain at the workplace during that time, the remote location of the transmission centres meant that he was not able to travel anywhere else or make varied use of his time, such as engaging in leisure activities.  .

The ECJ found against him, ruling that the period of standby would not be considered to be working time under the Working Time Directive, simply because he was required to be contactable by telephone and return to the site within one hour - even though the practical implication of that was that he had to stay in the transmission centre  (even though he was not required to stay there).

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The decision is a fact-sensitive one. The fact that the technician had decided to live a long way from his workplace was not a relevant factor that would influence the court. The worker was in a position to live closer if he wished to do so. The court also dismissed the argument that because there was a limited opportunity for leisure activity, that this was a decisive factor in determining whether the time spent on standby was working time. Periods during which the impossibility of leaving, due to the nature of the workplace  will not necessarily mean that the time spent at the workplace will amount to working time.

Whilst judgments of the ECJ remain influential, following the UK's exit from the EU they are no longer binding. This judgment has coincided with the UK Supreme Court's decision in the Mencap case and appears to be broadly consistent with it. .

If you are concerned that the position of 'standby' might affect you or your employee's rights under the Working Time Regulations in the UK, or for guidance on standby, please contact Mark Stevens in our Employment Law team on 07909 681036 or complete the form below.

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