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Stand-By Time Can Be 'Working Time' - An ECJ Decision

on Friday, 02 March 2018.

Many businesses and organisations use workers on stand-by during which they are required to be available to undertake work either remotely or by attending at the workplace if contacted.

A recent ruling by the Court of Justice of the European Union (ECJ) has set out that all time spent on stand-by like this can, in certain circumstances, be considered 'working time' for which workers should be paid.

In Ville de Nivelles v Matzak the claimant was a retained firefighter based in Nivelles, Belgium. One week in every four, the claimant was required to be on stand-by duty, during which time he would need to be contactable and within no more than 8 minutes travelling distance of the fire station. An annual allowance was paid to staff for stand-by shifts, however it was the claimant's case that he had not received sufficient payment.

The claims were largely upheld at first instance and on appeal to Brussels' Higher Labour Court. The matter was then referred to the ECJ for a preliminary ruling on a number of issues, including whether or not the EU Working Time Directive allowed stand-by time to be treated as 'working time'.

The ECJ reiterated that where a worker must be physically present at a place which is determined by the employer then this will amount to working time. This was, however, compared to a situation in which the worker must be permanently accessible but not physically present at the place of work. In those circumstances it was held that it is possible for the worker to have more freedom in how they manage their time and, as such, only time that is linked to the provision of services can be considered working time.

In this particular case it was noted that the claimant was not only required to be contactable whilst on stand-by but he was also required to respond to calls within 8 minutes. As a result, he did need to be physically present at a place determined by his employer, irrespective of the fact that the place was his home rather than his workplace. It was noted that the geographical constraints operated to limit the claimant's opportunities in terms of social interests and hobbies. As such, if a worker is required to be at home (or very close to his home) and respond to calls within a particular time frame, this time will be regarded as 'working time' for which the worker is to entitled to receive pay.

Best Practice

This decision potentially has significant implications for employers who rely on their staff being contactable and accessible within a short space of time when required. The case was subsequently referred back to the national courts to determine the question of whether or not the claimant had been correctly paid in this case. It remains to be seen, therefore, whether an annual allowance for stand-by time is considered acceptable.

In the meantime employers may wish to review their stand-by requirements and assess whether it is necessary for their staff to be available within a specific time period. If this is a necessity then employers will need to consider whether their arrangements for remunerating that time spent on stand-by are lawful. If attendance at the workplace within a short period of time is not a necessity then businesses may now wish to review the use of such arrangements.

For the avoidance of doubt, this case does nothing to modify the obligations on employers to remunerate stand-by staff where they are required to be available but are not required to attend at the workplace within any given period.

For more information please contact Nick Murrell in our Employment Law team on 0117 314 5627.

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