In Ville de Nivelles v Matzak CJEU Advocate General Sharpston has given her opinion that “working time” under the Working Time Directive should not automatically include time spent awayfrom the workplace during which workers have to be available to respond to a call from their employer within a short period of time.

The case concerns Mr Matzak, a retained firefighter working in Belgium. He had to be on call for evenings and weekends for one week in four. While on call he had to be contactable and, when called, he had to report to the fire station within eight minutes. His on-call time (when not actually responding to a call) was unpaid. He brought a claim arguing that he should be paid for all on-call time.

The Belgian Higher Labour Court referred a question to the European Court. It asked whether time spent at home, but under significant restrictions such as those on Mr Matzak, could be working time.

The Advocate General has now made clear her view that the determinative factor will not be the geographical or response-time based restrictions on the worker but the quality of time the worker enjoys while on stand-by; in other words, the extent to which the worker is free to pursue his or her own interests during on-call time.

The more freedom the worker has to pursue other interests during on-call time, the less likely it is that that time will be working time.