When is time spent on call ‘working time’?
25 March 2021
Two recent judgments of the European Court of Justice have provided guidance on when standby or on-call time will count as “working time” for the purposes of the Working Time Regulations.
Previous cases in the European Court of Justice (ECJ) had established that standby time away from the workplace, when no duties are being undertaken, will only be working time when the worker’s ability to manage their free time is significantly restricted. In these two latest cases, the ECJ clarifies that only constraints imposed by national law, collective agreement or the employer are relevant for this assessment, while constraints that are a consequence of “natural factors” or the worker’s own choices are not.
Standby time is time during which a worker remains available to provide work at the employer’s request. The workers in these cases were on standby “according to a standby system” – namely, they did not have to remain in a specific location but there were certain conditions with which they had to comply.
Facts of the first case
The first case was about an individual referred to as “DJ”, who was a specialist technician working at two radio and television transmission centres located in the Slovenian mountains. The nature of the work, the distance between the transmission centres and DJ’s home and the occasional difficulty in accessing the centres meant that he had to stay near the sites. One of the two sites was so far from his home that it would have been impossible for him to travel there daily, even in good weather. The transmission centres had on-site accommodation available.
DJ’s normal working hours were noon to midnight, and he was then off duty until 6am. The standby time was from 6am to noon. During this time, he could leave the transmission centre but had to be contactable by phone and able to return within an hour if needed. Only urgent tasks had to be carried out within standby time.
The employer treated the standby time as working time only if DJ had to carry out work. He was paid full salary when working but otherwise just a standby supplement of 20% of basic salary. DJ claimed that all standby time should be paid at full salary, as he was not free to dispose of his time during such periods. He could not be at home and the limited leisure activities in the area meant that he spent most of this time at the transmission centre which was also his workplace.
Facts of the second case
The second claim was by a firefighter in Germany (RJ) who was on call for emergency responses, known as BvE services. While on BvE standby, RJ had to be able to answer the phone and make decisions. If needed he had to attend his workplace or the site of the incident, in uniform and with his service vehicle. The response time was 20 minutes to the town boundary (with RJ using his traffic priority rights).
During the week, BvE standby was from 5pm to 7am the next day, and at weekends it was from 5pm Friday until 7am Monday. This was in addition to a normal working week of approximately 42 hours. RJ did 40 periods of standby time per year, with approximately 10 to 15 weekends. Over three years, he had 126 BvE periods and had to respond 20 times.
RJ claimed that all BvE time should be recognised as working time, not least because on receiving an alert he had to leave his home immediately to be within the response time.
The ECJ reiterated that the concept of “working time” within the EU Working Time Directive covers standby time, including when governed by a standby system, when the constraints imposed objectively and very significantly affect the worker’s ability to manage their free time and pursue their own interests.
In making this assessment, the ECJ said that the only relevant constraints are those imposed on the worker by national law, a collective agreement or by the employer. Such relevant factors include:
- How long does the worker have to return to work or resume professional activities if called upon? The shorter the time, the more likely that all standby time should be treated as “working time” because the worker cannot plan even brief recreational activities. DJ had one hour, while RJ had only 20 minutes.
- If appropriate, how often is the worker (on average) actually called upon to undertake duties within the standby time?
- If called upon to undertake duties, how much time does the work take? Is it significant or negligible?
- What equipment, if any, must the employee have if called out to work? The fact that RJ had to attend incidents in uniform and with a vehicle was relevant.
In contrast, constraints arising from natural factors or the worker’s own choices would not be relevant. These included, for example:
- A long distance between work and home because of where the worker has chosen to live.
- Any difficulty in reaching the workplace (for example, due to weather conditions).
- Limited opportunities to pursue leisure activities in the area (for example, because the workplace is on a mountain summit), even if this means that the worker will not in practice leave the workplace during standby time.
The ECJ said that an overall assessment of the relevant restrictions on the worker is required. The fact that an employer provides accommodation in or near the workplace at which the worker must stay during standby time does not necessarily mean all standby time is working time.
The ECJ also reiterated that the purpose of these rules is to safeguard the health and safety of workers. The distinction between “working time” and “rest time” is binary and mutually exclusive, so standby time is either one or the other.
That said, the ECJ noted that the classification of certain standby time as “rest time” does not affect employers’ duties to evaluate and take steps to prevent risks to workers’ health and safety, including stress and burnout. By its nature, work may have to be done during standby time and this should be factored into the broader health and safety duty. Employers cannot arrange periods of standby time that are so long or frequent they pose a health and safety risk, even if they are technically “rest” periods.
Implications for employers
Despite Brexit, these decisions remain relevant for UK employers. While EU Directives are no longer directly applicable in the UK, EU-derived legislation such as the Working Time Regulations 1998 have continued in force. It is very likely that UK courts and tribunals will continue to be influenced by ECJ decisions, not least because there is a continuing duty to interpret EU-derived UK law in line with the original European law. Employers also have a general health and safety obligation to provide a safe system of work for workers.
Many industries use standby or on-call time. Beneficially for many employers, the practical implications of the ECJ’s reasoning are that there are limited circumstances in which standby time should be classified as “working time” in its entirety. Moreover, it is the worker, rather than the employer, who will bear the burden of many of the logistical or geographical difficulties that can arise in such situations.
The ECJ’s judgments are helpful in clearly stating that only restrictions imposed by national law, collective agreement and the employer are considered relevant. In the UK, collective agreements are rarely binding, and national law does not specifically regulate on-call time. This means that the classification of standby time will generally be within the employer’s control, subject to judicial determination if the classification is challenged.
Businesses that make use of on-call or standby time should use this opportunity to review their practices (including any documents such as contracts and policies) to assess whether their requirements comply with the rules as now understood. If they do not, careful thought should be given to the reasons for any conditions or restrictions applying to standby time and whether it might be possible to relax any of the limitations.
The ECJ also reminds us that the question of what is “working time” and how time should be remunerated are separate questions. These cases deal only with the former, with the latter being a matter for national law rather than EU regulation. These cases do not restrict the employer’s ability to pay for standby periods without making them “working time”; indeed, in some cases payment may be necessary to ensure adequate cover or worker engagement.
On the topic of pay, the Supreme Court has coincidentally just given its judgment in the Mencap case, considering whether workers who are permitted or expected to sleep on shift are entitled to the national minimum wage.
DJ v Radiotelevizija Slovenija – judgment available here
RJ v Stadt Offenbach am Main – judgment available here