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For many employers, the concept of "working time" can be difficult to pin down. In particular, the question as to whether time spent "on call" can count as working time has been the subject of various European case law decisions over the last decade.
Working time is defined in the Working Time Directive (WTD) as any period during which a worker is carrying out his duties and is at his employer's disposal.
Historically, when considering this issue the courts have tended to focus on the worker's location during periods of time spent on call. However, in the recent Belgian case of Ville de Nivelles v. Matzak, the ECJ appears to be moving away from that line of thinking.
In this case the court was asked to consider whether time spent by Mr Matzak, a retired firefighter, on stand-by at home during evenings and weekends was "working time" under the WTD. The activities that he was able to carry out while on stand-by were severely restricted, due to the fact that he had to be able to report for work within eight minutes if needed, and he said that this left him unable to enjoy time with his family or to spend time pursuing his own interests. As a result, Mr Matzak argued that he should be paid for time spent on stand-by.
His case was ultimately referred to the European Court of Justice (ECJ) to determine whether the provisions of the WTD prevented home-based on-call time from being regarded as working time where the constraints on the worker restricted his ability to undertake other activities.
The ECJ ruled in Mr Matzak's favour, confirming that any on-call time that a worker spends near his workplace, with the duty to respond to calls from his employer within eight minutes, must be regarded as working time.
The court's decision echoed the earlier opinion given by the Advocate General on this case. Interestingly, the Advocate General emphasised that in each particular case regard should be had to the quality of the time that the worker may enjoy when on "stand-by" duty, rather than on any specific restrictions placed on the worker's on-call time by the employer. This is a departure from previous case law, which has tended to focus on the worker's location during periods of time on stand-by and whether such location has been determined by the employer.
This case is important for employers with workers who are required to be on call. Employers should review the restrictions that they place on such workers, as it could be that time spent on call may now be found to be working time in light of this decision. If it is, those workers may well be entitled to the national minimum wage for the hours they are on call.
To reduce this risk, employers should also carefully consider whether they need to place significant restrictions upon employees' activities when they are on call, ensuring that such restrictions are no more than necessary to fit with operational requirements.
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