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Ville de Nivelles v Matzak ECJ February 2018
The claimant is a retained (part-time) fire-fighter in Belgium. He is “on standby” (on-call) to turn out for fires for one week out of every four, during the evenings and at the weekend. When on-call, the claimant has to remain contactable and be able to get to the fire station within eight minutes. In practice this means he must live near the fire station and his home and personal activities are necessarily restricted when he is on-call. Time spent on-call is unpaid.
The ECJ has held that time spent by fire-fighters during which they are “on standby”, i.e. on-call at home but are required to report for work within eight minutes, must be “working time” under the Working Time Directive. In this case, the obligation on the claimant to remain physically present at his home, as directed by his employer, and the “geographical and temporal constraints” resulting from the requirement to reach his place of work within eight minutes, imposes a limit on the opportunities which workers such as the claimant have to enjoy personal and social interests. The claimant’s case was therefore distinguished from that of a worker who, during his standby duty, simply has to be only at his employer’s disposal and contactable regardless of where he is located.
Whether or not a worker who is on-call needs to be paid for this time depends on how much freedom the worker has to engage in non-work activities during the on-call time. If the restrictions on the worker severely impact personal and social activities then that time is most likely to be working time. The ECJ concluded that the obligation on a worker to be available to their employer and able to reach the fire station within eight minutes was critical to the finding that the on-call time was working time.
Every case will turn on his own facts. A key difficulty in applying this decision to future cases is trying to work out what amounts to ECJ’s concept of “significantly restricting” opportunities for other personal or social activities. In this case, the requirement on the claimant to respond to fire calls within eight minutes was considered a significant restriction but arguably the longer the time to respond, the less restrictive a requirement it may be.
If you have on-call workers, to avoid having to pay them whilst on-call, you need to permit them to have as much flexibility and freedom to carry out their personal and social activities as possible. For many on-call workers this should be possible particularly if they can receive mobile phone calls and provide help to clients and customers via phone calls and/or remote IT access.
If you have concerns about your on-call workers, Simon Quantrill or Julie Temple will be happy to discuss your concerns and advise.
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