The question of when an on call worker is considered to be working has vexed courts and tribunals for years. In the latest instalment, the European Court of Justice (ECJ) has recently held that time spent on standby at home (during which the employee was required to respond to call outs within eight minutes) was working time under the Working Time Directive.
The ECJ has previously held that, provided they are free to pursue leisure activities, time spent by a worker on call outside their workplace is not regarded as working time, although any time spent working in response to a call-out is working time. The Employment Appeal Tribunal (EAT) have also held that if a worker is required to spend time on call at or near a location specified by the employer, which is not a workplace itself, the central question is whether the worker is required to be present at a place determined by the employer. If there are narrow limits as to where the worker can be and they cannot be at home, the time spent on call will be working time because they cannot enjoy the quality of rest which they are entitled to have.
The claim was brought by a retained firefighter from Belgium. One week out of every four, he was required to be available on call for work during the evenings and weekend. During these on call periods, he had to remain contactable and was required to report to his fire station as soon as possible (but in any event within eight minutes) if he was called out. As a result of the very short eight minute response time, he had to live very close to the fire station and, when he was on call, his social activities were understandably restricted. He was not paid for being on call and brought domestic proceedings against the fire service complaining that he should be paid for time spent on call. The domestic court in Belgium referred a number of questions to the ECJ for a preliminary ruling.
The ECJ held that the time he spent on standby at home was ‘working time’ under the Working Time Directive. The fire service had placed him under geographical and temporal constraints by requiring him to reach his place of work within eight minutes of being called out. His opportunities to pursue his personal, social and leisure activities and interests were severely limited by the short response time he was subjected to. The ECJ distinguished the restrictions placed on him from those situations in which a worker must simply be contactable and only at his employer's disposal to the extent that he can be contacted during any standby duty.
What does this mean in practice?
The key thread running through all of the case law appears to be the extent to which a worker's freedom to engage in social or leisure activities during periods of on call time are restricted. If their freedom to enjoy social activities is severely restricted by the employer’s requirements on them during on call periods, the time spent on call must be regarded as working time.