Does ‘on call’ time count as working time?
Is ‘on call’ time working time? The Working Time Directive (incorporated in the UK as the Working Time Regulations 1998) has been under the microscope recently, particularly in relation to travel time (because neither the Working Time Directive nor the Working Time Regulations comment on travel time to and from work). This article looks at a recent European case that considered whether time spent on call constitutes working time.
Rudy Matzak was a retained (volunteer) firefighter in the town of Nivelles, Belgium. He was required to:
- Be on call for work once every four weeks (during evenings and weekend); and
- When on call (that is, during periods when on call but not called upon to carry out any duties), remain contactable, report to the fire station when necessary and to be no more than eight minutes travelling distance from the fire station.
Mr Matzak was only paid for the time he was active carrying out duties, and not for the time he spent on call where he was available but not required to do any work. Mr Matzak didn’t like the fact he wasn’t being paid for when he was on call (among other issues) and brought court proceedings in the Belgium courts.
The Belgian Court requested assistance from the European Court as to whether Mr Matzak’s time spent on call constituted working time.
The Court of Justice of the European Union (CJEU) said that Mr Matzak’s on call time must be regarded as working time. The big factors for the CJEU were:
- Mr Matzak’s obligation to remain physically present at the place determined by the employer; and
- The requirement for Mr Matzak to be no more than eight minutes away from the fire station, thereby severely restricting his ability to carry out other personal and social interests.
This case illustrates that the time spent on call for workers can count as working time. The implications are that (1) workers who are on call could be entitled to the Minimum Wage (for the hours that they are on call for); and (2) it could affect the workers entitlement to breaks under the Working Time Regulations.
Whilst this decision doesn’t provide many absolute answers, it does indicate that (1) an employer’s control over where a worker will be when on call; and (2) restrictions on a worker’s ability to carry out personal and social activities when on call, are factors that European Courts will take into account when assessing whether on call time counts as working time.
This decision has provided more substance as to when on call time constitutes working time for the purposes of the Working Time Directive (and Working Time Regulations 1998). Employers should therefore take into account the above two factors when making arrangements for their workers to go on call.
Case report: Ville de Nivelles v Rudy Matzak
By Zahid Reza
Image used under CC courtesy of Filip Pticek