Is it ‘working time’ or not?

Insights - 21/05/2021

Working time for the purpose of the Working Time Regulations means ‘any period during which [the worker] is working, at [the] employer’s disposal and carrying out [their] activity or duties’ in accordance with national laws and/or practice.

However, understanding exactly what amounts to “working time” in practice is an issue with which many employers must grapple, particularly when dealing with “on-call” or “standby” time.

The European Court of Justice (ECJ) has provided some input on this topic in two recent case decisions.

Although, following Brexit, the ECJ’s rulings no longer bind the UK, the domestic tribunals must still have regard to decisions where relevant.

Facts of the cases

The first case involved a firefighter who, when on standby, had to be contactable at any time to answer a call and attend the incident or workplace. He was required to have his uniform and service vehicle with him and needed to be within 20 minutes of the town boundary.

The second case involved a technician who worked at two sites. He was required to “stay close” to the relevant site whilst on standby. One of the two sites he worked at was so far from his home that the employer provided accommodation which the technician could but did not have to use when on standby. The technician had to remain contactable whilst on standby and be able to return to the site within one hour if contacted.

Both individuals argued that because of the constraints placed on them during their standby periods, the whole time should be considered working time and they should be remunerated accordingly.

Decision

In both cases, the ECJ held where a worker is required to be contactable and has to return to site within a stipulated time period, they may be considered to be working, but only if those constraints ‘objectively and very significantly’ affect their ability to devote that time to their own interests. In this regard the frequency of the calls and the stipulated response time could be significant. If a high number of calls is expected and the stipulated response time is only a few minutes, there is less scope for the worker to carry out their own recreational activity, so they are more likely to be considered as working.

In assessing the effect of the constraints, the ECJ clarified that the limited nature of the opportunities to pursue leisure activities within the immediate vicinity is irrelevant and only those constraints imposed by law, collective agreement or the employer are relevant in the assessment. Constraints arising from natural factors or the worker’s own free choice (such as living a significant distance from the workplace) should also not be considered.

What this means for you

You should be aware of these rules and the extent to which they relate to your working practices. You might consider to what extent the worker is able to plan and attend personal and social activities or whether the restrictions imposed on them mean they are dissuaded from planning any kind of recreational activity, even of a short duration. You might also think about whether the worker is able to respond to requests without leaving their place of home, or whether you provide equipment which assists them in their response time.

In addition to the points on whether workers are to be considered as working whilst on standby, employers should also be aware of the implications of requiring workers to adhere to periods of standby time that are so long or so frequent that they constitute a health or safety risk whether to the workers themselves or others. Employers must ensure that their workers receive sufficient rest periods and build this into any decision about how often and for how long you require them to be on standby.

If you would like to discuss any of the issues addressed in this article then please do contact a member of our employment team who would be happy to help.

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Although correct at the time of publication, the contents of this newsletter/blog are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article. Please contact us for the latest legal position.