If the beast from the east struck again
Stephanie Bowen | 08.03.2019
24.04.2018 Stephanie Bowen
In the case of Villes de Nivelles v Matze, the European Court of Justice (ECJ) held that ‘stand-by’ time (which a worker spends at home while being duty bound to respond to calls from his employer within eight minutes) must be regarded as ‘working time’.
In the above case, the obligation for the worker to remain physically present at a place determined by the employer (his home) and the ‘geographical and temporal constraints’ resulting from the requirement to reach his place of work within eight minutes limited the workers ability to devote him/herself to personal and social interests.
The above situation can be distinguished from that of a worker who, during stand-by duty, must be at his/her employer's disposal so that he/she can be contacted only.
The ECJ's decision that ‘stand-by’ time should be regarded as ‘working-time’ confirms that where a worker's freedom to engage in non-work activities during on-call time spent at home is severely impacted, then that time must be classed as working time.
One potential difficulty arising from this decision is how to determine what constitutes ‘significantly restricting’ opportunities for other activities. In this case, the requirement to respond to calls within 8 minutes was considered a significant restriction. Arguably, the longer the time to respond, the less restrictive a requirement it is.
Ultimately, the quality of time spent on-call (and naturally the freedom that the worker has to pursue other activities) is of overriding importance when determining whether ‘stand-by’ time is working time.
Any organisation with an on-call requirement would be advised to check whether their policy is appropriate. If requirements are set, employers should consider whether they are too restrictive.