Do standby periods count as ‘working time’ for the purposes of the EU Working Time Directive?

In recent cases it was held that standby periods are considered as ‘working time’ under the EU Working Time Directive if the standby period affects, “objectively and very significantly, the possibility for the [worker] freely to manage the time during which his or her professional services are not required and to pursue his or her own interests”. This depends on the particulars circumstances of the individual being required to work on standby. Only constraints imposed at national level would apply. Two cases have recently dealt with this: DJ v Radiotelevizija Slovenija and RJ v Stadt Offenbach am Main.

RJ v Stadt Offenbach am Main

The employee in this case was a firefighter who was required as part of his job to respond to a call and be at the town boundary of the call out location in uniform with his vehicle within 20 minutes of the call. This was held to be ‘working time’ by the European Courts of Justice (‘ECJ’).

The EJC held that constraints on the employee’s free management of time which were as a natural result of the freedom of choices made by the employee may not be considered when deciding whether the time is considered as ‘working time’. For example, where there is some distance between the employee’s residence and the place the employee is required to be on standby, that would not automatically be a factor to consider as ‘working time’.

Considerations that are important to consider are as follows:

  • The frequency of the time the employee is called on standby on average, the higher the frequency the less likely the employee is to be able to freely manage their time;
  • Where the employee is required to stay at the workplace whilst being on standby, in particular where this objectively and very significantly restricts the possibility for the employee to freely to manage their time;
  • The reasonableness of the time it takes for the employee to be able to resume their activities or plan activities whilst being on standby e.g. if the employee is required to respond and work within minutes, this would dissuade the employee from being able to make plans therefore restricting their management of free time;
  • Does the employee need to physically respond and travel to respond to the work request on standby or can they respond from home, this may impact whether they can manage their free time;
  • Are they provided with a service vehicle in which to respond to the standby request, this may aid the employer to get to the call out location quicker than other means of transport so aiding management of free time.
DJ v Radiotelevizija Slovenija

In this case, the employee was a specialist technician who was required to be on standby and respond to calls at two television transmission centres at different locations. When on standby, though the employee was not required to stay at the transmission centre, he was required to respond to calls and where necessary attend the transmission centre within an hour of the call. The employee when on standby relocated staying nearby, due to where he resided and where the transmission centres were located; he could not reasonably travel on a daily commute. Due to his location, he was given accommodation when he was on standby in order to be within the vicinity of the centres.

The ECJ held that standby time where an employee stays away from home, but is not required to, will not automatically render it all ‘working time’ as in this case the employee had freely chosen to reside with that amount of distance between their home and workplace. A national court would need to consider the frequency of the standby call outs in each period, in order to understand how the standby restricted the employee from freely managing their own time and pursuing their leisure activities.

Considerations that are important to consider are as follows:

  • Whilst on standby, time needs to be distinguished between ‘working time’ and ‘rest period’, however the fact that the employee isn’t undertaking the work in question does not make it automatically a ‘rest period’;
  • Where the employee is on standby and required to be immediately available to provide the relevant service, the whole of the standby period should be considered as ‘working time’ particularly if it has an ‘objective and very significant impact on their ability to pursue their personal and social interests’;
  • In situations where it is difficult for the employee to leave, not because of the obligations imposed by the standby but by other factors including the nature of the workplace/location do not constitute ‘working time’;
  • Where the employer provides accommodation to aid the employee being on standby, does not solely mean that the standby time will constitute ‘working time’.
Implications

These decisions are important in assessing whether standby time is ‘working time’ or ‘rest period’. Once the time is classified as ‘working time’ the employer has health and safety obligations to consider including the frequency and longevity of the amount of ‘working time’ and its impact on the employees.

Please note, since Brexit, though the UK are not bound by ECJ decisions, they may have regard to the judgments so it is important to stay alert to these decisions regardless of Brexit.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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