Can stand-by time spent at home but within a short distance of a workplace be counted as 'working time'?
On stand-by at home
A recent case in the Court of Justice of the European Union looked at this issue. The case was Ville de Nivelles v Matzak.
The Claimant, Mr Matzak, in this case had served as a volunteer retained firefighter for the Belgian town of Nivelles since 1980. Whilst on 'stand-by duty', he had to be contactable and within 8 minutes travelling time of the fire station.
All staff were paid an annual allowance for stand-by shifts, and Mr Matzak claimed that he had not been paid appropriately for this time.
Is 'stand by time' working time?
Amongst the issues the Court had to consider was whether stand-by time was working time.
The Advocate General had suggested that the quality of the time a worker would spend on stand-by was more important than the restriction on where they should be. The Court rejected this, stating that the intensity of work did not determine whether time was working time or a rest period.
Who determines whether an employee has to be physically present?
The Court went on to look into when a worker had to be physically present at a location determined by the employer (for example within an 8 minute travel time, or a 5 mile radius). In addition, it looked at when an employer restricts stand-by time by saying that the employee must be available to work at short notice.
The Court decided that this makes it impossible for the worker to choose where to be, then that would come within their normal working duties.
In this case, the employee had to be in a certain location and available at short notice, and therefore, the stand-by time was defined as working time.
Appropriate pay for stand-by time
Paul Burton, Head of Frettens' Employment Team, says “Having ruled that stand-by time was working time, it would then be for the national court to determine whether the Claimant had been properly paid for this time and whether the annual allowance in this case had been appropriate."
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Paul or Kate will be happy to discuss it with you.