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Are Workers Entitled to Be Paid for Time Spent on 'Stand-by'?

on Tuesday, 17 April 2018.

It is common for public sector organisations to use workers on 'stand-by', such as care workers, paramedics and firefighters.

During stand-by shifts, workers may be required to be available to undertake work if they are contacted to do so.

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

The Facts

In Ville de Nivelles v Matzak the Claimant was a volunteer firefighter based in Belgium. Every four weeks the Claimant was required to be on stand-by duty, during which time he was told that he needed to be contactable and within no more than eight minutes travelling time to the fire station. An annual allowance was paid to him in return for his doing the stand-by shifts. The Claimant argued that he had not received sufficient payment for his work.

The claims were largely upheld at first instance and on appeal in the domestic courts, before being referred to the ECJ for a determination.

The ECJ Decision

The ECJ held that in circumstances where a worker must be physically present at a location determined by his employer, then time spent under that obligation will amount to working time.

In this case the Claimant was required to respond to calls within eight minutes. He therefore did need to be physically present at a place determined by his employer, regardless of the fact that the place was his home, not his workplace. The geographical constraints placed upon him limited the Claimant's opportunities in terms of social interests and hobbies. As such, the ECJ held that if a worker is required to be at home (or very close by) and respond to calls within a particular time frame, this time will be regarded as 'working time' for which the worker is entitled to be paid.

This outcome can be compared to circumstances where the worker must be permanently accessible, but not physically present, at the place of work. In those circumstances it is possible for the worker to have more freedom in how they manage their time and as such, only time linked to the provision of services would be considered working time, a position established in previous ECJ decisions.

Best Practice

This decision has potentially significant implications for employers who rely on staff being contactable and accessible within a short space of time, and crucially require those employees to reach their physical place of work within a specific period of time. Employers may wish to review their stand-by requirements and assess whether they are necessary. If they are necessary, employers should consider whether their arrangements for remunerating employees undertaking stand-by duties are lawful in light of this decision, or if there is risk of complaints.

The case was referred back to the national courts to determine whether the Claimant had been correctly paid, and it remains to be seen whether in this particular case the annual allowance for stand-by time will be considered acceptable.

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 work place within any given period.

For more information and advice please contact Allison Cook in our Employment Law team on 0117 314 5466.

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