The European Court of Justice (ECJ), in the case of Ville de Nivelles v Matzak, has held that stand-by time spent at home must be viewed as ‘working time’ where constraints placed on the worker by the employer significantly restrict the worker’s ability to pursue personal and social interests (i.e. non-work interests).
The claimant, Mr Matzak, is a retained firefighter in Belgium. One week out of every four, he is required to be on stand-by during evenings and at the weekend. When on stand-by, he must be able to respond to calls and report to the fire station within eight minutes. As a result, he must live very close to the fire station during stand-by time.
Mr Matzak did not receive pay for time spent on stand-by and brought domestic proceedings in Belgium regarding his lack of pay in this regard. Belgium subsequently referred a number of questions to the ECJ, including the issue of whether the stand-by time should be treated as ‘working time’.
The ECJ noted the following regarding stand-by duties and ‘working time’:
- Where a worker is required to be physically present and available to provide his services at a place determined by his employer, time spent in this way must be treated as ‘working time’.
- Where a worker is required to be available (e.g. to respond to calls) but not be present at his employer’s place of work, only time connected to the provision of services will count as ‘working time’.
- The intensity of work and work output are not determinative for the purposes of identifying ‘working time’.
In Mr Matzak’s case, the ECJ observed he was not only required to respond to calls but also to do so within a strict timeframe (by being present at the fire station within eight minutes). As such, there were both geographical and time-based constraints placed on him. In practice, Mr Matzak’s home was the place determined by his employer as being the place from which he would be based during stand-by time.
The constraints placed on Mr Matzak limited his ability to pursue personal and social interests (i.e. non-work interests). Accordingly, his time spent at home on stand-by duty counted as ‘working time’ as his situation differed significantly from that of a worker who, during his stand-by duty, simply had to be contactable by his employer.
Where a worker’s ability to pursue non-work interests is severely restricted during stand-by or ‘on-call’ time, this time will count as ‘working time’. Crucially, the intensity of work and level of work output will not be determinative factors. What matters is how, and to what extent, the worker is restricted. In Mr Matzak’s case, a duty to report to the fire station within eight minutes was a severe enough constraint to mean time spent on stand-by was ‘working time’.
Ultimately, employers should assess the nature of time spent by workers on stand-by or ‘on-call’. Only after this assessment has taken place, will a fact-sensitive decision be able to be made about what counts as ‘working time’. The less able the worker is to pursue non-work interests, the greater the likelihood of that time counting as ‘working time’.
In practice, identifying where the line should be drawn in each case will be a difficult task. At exactly what point, for example, will any time constraint on arriving at work be wide enough to argue time spent ‘on-call’ is not ‘working time’? Broadly speaking, a common-sense approach should be taken with reference to the relevant case law. As always, the facts will also be key. It will be possible to distinguish Mr Matzak’s case, and the particularly severe constraints experienced by him, from other cases.