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Published 8 April 2021
The European Court of Justice has considered two cases on the circumstances under which standby time will constitute working time.
The German and Slovenian courts both referred cases about standby to the European Court of Justice (ECJ). One concerned a firefighter who had to be reachable at any time when he was on standby and have his service uniform and vehicle with him. He also had to be able to reach the town boundary within 20 minutes. The other case concerned a worker who was a specialist technician working in transmission centres who, due to the distance between the centres and his home, had to stay in the vicinity of the sites while on standby. One of the sites was so far from his home that it would have been impossible for him to travel there on a daily basis, so he was provided with accommodation on site which he was entitled (but not required) to use. He was free to leave the centre when he was on standby, but had to stay contactable and be able to return to the workplace within an hour.
Both workers argued that time on standby should be treated as “working time” and remunerated as such.
In both cases, the ECJ held that there are circumstances where standby time must be classified as “working time” even if the worker is not required to remain at their workplace. This will be the case if the constraints imposed on the worker while they are on standby “objectively and very significantly” affect their ability freely to manage their time in the part of standby when their services are not required by their employers. The “constraints” must be those imposed by national law, a collective agreement or by their employer. Constraints imposed as a consequence of “natural factors or of his or her own free choice” – such as the distance between the workers’ freely chosen residence – will not be taken into account.
The ECJ set out factors that will be relevant in assessing whether constraints imposed on a worker during standby are such as to warrant classifying that period as “working time”. These factors include the required response time during standby: if the worker is allowed a reasonable time to resume their professional activities, so that they can plan their personal and social activities, the standby will not be “working time”. If the worker is required to return to work within a few minutes, the period must, in principle, be regarded as working time because they will, in practice, be strongly dissuaded from planning any recreational activity. Other factors will be the frequency with which workers are called on during standby.
The ECJ also commented that, even where standby time is not considered to be working time (and therefore constitutes a rest period), it may impose a psychological burden on the worker, making it difficult to fully withdraw from the working environment for long. Employers must still comply with other health and safety obligations towards their workers.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Although UK courts are no longer bound by new decisions of the ECJ, the UK courts are likely to take these cases into account in applying the Working Time Regulations 1998. Employers whose workers are expected to be on standby should consider whether, in the light of these cases and the specific circumstances, time on standby should be treated as working time and paid for.
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