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Is time spent on standby classed as 'working time'?

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Is time spent on standby classed as working time?

Paul Burton, Head of Employment at Frettens, looks at some recent cases where it was disputed whether standby time falls under the definition of working time.

What is working time?

Working time is any period in which an employee spends at paid labour, this includes any training and any time that an employee is 'engaged to wait'. Working time doesn't include breaks, external training (even if part of an apprenticeship scheme) and, generally, commute time (unless they are a 'mobile worker').

For more information on what is considered 'working time' for your specific circumstances, please refer to your contract of employment.

What constitutes working time?

The Court of Justice of the European Union (CJEU) has considered two cases involving workers on standby and whether the whole of the standby period should be considered working time.

The Working Time Directive says that working time is any period where the employee is working, at the employer’s disposal and carrying out their duties.

A rest period is any period which is not working time. The CJEU has previously found that standby time can be working time if the employee must be physically at the workplace (or another place determined by the employer) and able to provide services immediately if required.

Is time spent on standby working time?

Another case, Ville de Nivelles v Matzak, said time spent by firefighters on standby at home was working time because they were required to be at home by the employer and to respond within 8 minutes. This put significant constraint on what they could do in terms of social and personal interests during that time.

DJ v Radiotelevizija Slovenija

In DJ v Radiotelevizija Slovenija, the CJEU said that a period of standby wouldn’t be working time just because a worker was required to be contactable on the phone and able to return to the workplace within an hour, in circumstances where they were able but not required to stay in employer accommodation.

It was for the national courts to looks at each case’s individual facts, the frequency of disturbances, the consequences of the time limit for responding and therefore the constraints placed on the worker’s ability to pursue their own interests.

Does working time include time spent on-call?

In RJ v Stadt Offenbach am Main, a firefighter on standby had to be able to reach the town boundary in full uniform and in their service vehicle within 20 minutes of a call. The CJEU said it would depend on the circumstances whether a requirement to reach the town boundary within 20 minutes was working time.

It repeated what it had said in DJ that what was relevant was the consequences of the response time and the frequency of call outs when on standby. The question was whether the constraints placed on the worker during standby objectively and very significantly constrained their ability to freely manage and pursue their own interests.

What factors affect the definition of working time?

The court noted that a requirement to be at a workplace, or another place, by an employer would be decisive in making standby working time.

Time periods for responding may also be relevant - if a worker must respond to a call within a few minutes, that will necessarily constrain what they are able to do during standby. If there is a reasonable period to respond though (such as an hour as in the DJ case) standby may not be working time.

The frequency of calls is also important – the more calls received during standby, the less able to pursue their own interests a worker is likely to be. It goes without saying that time actively working once called out is working time.

This case was decided after the UK left the EU. However, courts and tribunals may still have regard to post-Brexit CJEU case law if it is relevant. These cases may well be considered by UK courts and tribunals in considering cases under the Working Time Regulations 1998.

An employment solicitor's view

Paul Burton, Head of Employment, said: “The CJEU cases are interesting and come alongside the UK Supreme Court’s recent Mencap decision, in which it was decided that care workers allowed to sleep while on-call could not count the time sleeping as working time. 

This subject is a particularly thorny one, with the Working Time Regulations 1998 being extremely out of date.  Cases involving working time disputes often turn on their own facts and we would advise employers and employees alike to seek legal advice if they are involved in such a dispute.”

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