Can time spent on-call whilst at home be classed as “working time”?

There has been a distinction drawn between time spent on-call where the worker is required to be at work or a place decided by the employer (usually working time) and time spent on-call where the worker can be at any location so long as they are contactable (usually categorised as a rest period). This is important because it will affect whether employers are giving workers the correct rest periods. The ECJ have looked at a case where a worker was required to be at a particular location by his employer but this location was his home. In Ville de Nivelles v Matzak, a volunteer firefighter in Belgium was required to be on stand-by at his home and respond to any calls within 8 minutes. After 28 years, he brought a claim in the Belgian courts for payment for his services as a volunteer firefighter, and payment for the time spent on stand-by. At first instance, his claim was mainly successful. On appeal, the Brussels Higher Labour Court was uncertain whether the stand-by services fell within the definition of “working time” under the Working Time Directive. The Court referred a number of questions to the European Court of Justice (ECJ). These included a question as to whether the Directive prevents on-call time from being classed as “working time” when it is carried out at the home of the worker, even where there are constraints put on the worker which will significantly restrict their opportunity to carry out other activities. The ECJ reiterated that it is not the location of the employee that is the determining factor – instead, it is whether there is a requirement for the worker to be physically present at the place determined by the employer and to be available to provide services immediately when required. If these requirements are present, this on-call time will be classed as “working time” because of the obligations and restrictions placed on the worker by the employer; the worker will have limited or no opportunity to carry out personal or social interests during this time. What this means for employers:

• This ECJ decision extends the definition of “working time” by confirming time spent on-call can fall within this definition even where the worker is at their own home during this period.
• Rather than the location of the worker being fundamental to the determination of “working time”, the decision highlights it will be the extent of any restrictions and obligations placed on the worker whilst they are on call.
• Employers with staff on-call should assess the extent of any restrictions placed on the employee during this time. Where these restrictions will affect their opportunity to undertake their own activities, even if they are located in their own home, this time is likely to be seen as “working time”.
• Employers may have to review their on-call shifts to ensure workers are receiving the correct rest periods. Where the extent of restrictions means the on-call shift is classed as “working time” and adequate rest periods aren’t provided, additional compensatory rest periods may need to be given.