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When are On-Call Shifts considered working time?

On call workers Employment Law Thorntons

For many workers their job will involve an element of being on-call.  That may be care workers who are on-call or perform “sleeping-in” shifts, to plumbers, electricians, or workers in utility companies.  Sometimes being on-call will involve someone being at home but having to respond to calls, for others it will require them to be within a particular distance or travelling time from their workplace.  Whether or not such on-call time is considered working time is important both for determining compliance with both the Working Time Regulations 1996 and the National Minimum Wages Act 1998.

A recent European case has considered this question in relation to the Working Time Directive.

The Working Time Directive and Working Time - Background

The Working Time Directive (2003/88/EC) defines “working time” as any period during which a worker is: (i) working, (ii) at the employer’s disposal, and (iii) carrying out their activities or duties in accordance with national laws and/or practice. The Directive also defines “rest period” as any period which is not working time.

The status of time spent “on call” has been the subject of much debate. European case law on this subject has held that on-call time will fall within the definition of working time if the worker is required to be physically present at a place determined by the employer, and required to be available to the employer in order to provide the appropriate services immediately in case of need.

In the case of Ville de Nivelles v Matzak, the CJEU considered whether time spent away from the workplace on stand-by duty could amount to working time under the Directive. 

The Facts

Mr Matzak is a retained firefighter for the Ville de Nivelles in Belgium. He is required to be on-call for work during evenings and weekends, 1 week out of every1.  When he is on stand-by duty, Mr Maztak is required to remain contactable and, if required to do so, must report to the fire station within 8 minutes of a call. This requires him to live near the fire station, and significantly restricts his activities whilst he is on stand-by duty. Time spent on stand-by duty is unpaid.

Mr Matzak brought proceedings against his employer claiming that time spent on stand-by duty could be categorised as working time, and therefore should be paid. His claim was largely upheld at first instance. On appeal, the Higher Labour Court in Brussels referred a number of questions to the CJEU for a preliminary ruling. One of these questions was whether the Working Time Directive prevented stand-by time at home from being treated as working time.

The court considered the previous case law, which had held that where a worker is required to be physically present and available at a place determined by the employer, this must be regarded as working time. However, where a worker is required to be accessible by the employer, but is not required to be present at his or her place of work, only time spent by the worker in the provision of his or her services would constitute working time (as there are fewer constraints on the worker’s ability to undertake non-work related activities).

The Decision

The court held that “stand-by” time which a worker spends at home but which significantly restricts his or her ability to engage in other activities (due to the requirement to respond to calls from the employer within eight minutes), must be regarded as working time.  In this case, Mr Matzak was not simply required to be contactable by his employer during his stand-by time. He was (i) obliged to respond to calls from his employer within 8 minutes, and (ii) required to be physically present at the place determined by his employer (his home). The requirement for Mr Matzak to remain physically present at his home, and the “geographical and temporal constraints” arising from his obligation to reach his workplace within 8 minutes, would significantly limit his ability to engage in his personal and social interests, and were critical factors in the court’s decision.

What does this mean for Businesses?

In certain sectors, whether stand-by on on-call requirements amount to working time may have a significant impact both operationally in ensuring that staff have the correct rest breaks under the Working Time Regulations, but also in determining that workers have been paid the National Minimum Wage.  This is particularly relevant for the care sector and the financial pressures it is facing.

Businesses have to consider carefully any restrictions placed on staff when on on-call/stand-by duties for example in terms of where they have to be, or how quickly they have to respond, whilst still ensuring that any requirements fit with operational requirements. 

The Court of Appeal is due to hear the case of Focus Care Agency Ltd v Roberts on 20 March 2018.  This case is looking at the implications under the National Minimum Wage Regulations of workers required to be either present at the workplace (albeit they can sleep there) or where they need to be available at or near their place of work.  This is likely to be a significant for the care sector, so watch this space!

Posted by Noele McClelland


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