The European Court of Justice (ECJ) has recently made rulings relating to whether standby periods count as working time. This blog summarises these rulings and expands on how this may be relevant to the Working Time Regulations 1998.
European Court of Justice
Although the ECJ’s rulings no longer bind the UK due to section 6(1) of the European Union (Withdrawal) Act 2018, under section 6(2), courts and tribunals may ‘have regard’ to the ECJ’s case law where relevant, even after Brexit.
Therefore, the rulings of the recent ECJ cases may be taken into account by the courts and tribunals in the UK when applying the Working Time Regulations 1998.
ECJ Cases – what were the facts?
Two recent cases have provided rulings on the circumstances in which standby time constitutes working time for the purposes of the EU Working Time Directive: DJ v Radiotelevizija Slovenija and RJ v Stadt Offenbach am Main.
In the case of DJ v Radiotelevizija Slovenija, DJ was a specialist technician working in transmission centres. Due to the distance between DJ’s home and the centre he worked at, it was necessary for him to stay close by to the site whilst on standby. One of the two sites DJ worked at was so far from his residence that it would have been impossible for him to travel there on a daily basis, even in the best conditions. The employer provided accommodation for DJ on site which DJ was entitled, but not required, to use. When DJ was on standby, he was able to leave the centre but had to remain contactable and, if called upon, return to the site within one hour.
In the case of RJ v Stadt Offenbach am Main, RJ was a firefighter. When he was on standby, he had to be contactable at any time and have his service uniform and vehicle with him. RJ had to respond to calls, decide what action to take and, in certain instances, attend the incident or the workplace. Whilst on standby he was required to reach the town boundary (using traffic privileges and rights of priority) within 20 minutes.
ECJ Rulings – what did the ECJ hold constitutes working time?
In both cases, the ECJ held that a worker may be considered working where they are required to be contactable and able to return to the workplace within a given period. The ECJ clarified that this will only be considered as working time if these constraints ‘objectively and very significantly’ affect the worker’s ability to devote that time to other interests. The ECJ held that, when looking at the effect of the constraints, the limited nature of the opportunities to pursue leisure activities within the immediate vicinity of the workplace concerned is irrelevant.
The ruling went on further to demonstrate that constraints arising from ‘natural factors’ of the worker’s own free choice will not be taken into account. Only the constraints imposed by law, collective agreement or the employer are relevant. In the case of DJ v Radiotelevizija Slovenija, the ECJ held that the fact that there is a substantial distance between the worker’s home and the workplace is not in itself a relevant criterion for classifying the whole of that period as ‘working time’, given that the worker is able to freely determine that distance.
In DJ v Radiotelevizija Slovenija, the ECJ went on to say that this aspect of its ruling contrasted with its earlier decision in Federación de Servicios Privados del sindicato Comisiones obreras (CC OO) v Tyco Integrated Security SL and anor. In this earlier case the ECJ held that, for workers who do not have a fixed place of work, time spent travelling each day between their homes and the premises of their work (the premises of the first and last customers as designated by their employer) would constitute as ‘working time’.
The ECJ also noted that, if the workplace includes or is indistinguishable from the worker’s residence, the mere fact that the worker is required to remain at his or her workplace during standby does not of itself mean that that period constitutes ‘working time’.
The ECJ also considered how the required response time can indicate that the standby period is in fact working. If the worker is required to return to work within a few minutes, that period must be regarded as working time since the worker is strongly dissuaded from planning any kind of recreational activity, even of a short duration. The ECJ also noted that the frequency with which workers are called upon should be taken into account. If the frequency is high, there is less scope for the worker to carry on any recreational activity and so they are more likely to be considered as working.
Does non-working standby time fall within the definition of a rest period?
The ECJ also noted that, according to previous case law, standby time which does not constitute as working time should be classified as a rest period. However, the ECJ held that this classification is without prejudice to the employers’ duty to comply with their specific obligations under the EU Health and Safety at Work Directive.
Therefore, even if the standby time is not going to be classified as working time, due to the fact that workers are still subject to their professional obligations during that period, employers cannot establish periods of standby time that are so long or frequent that they constitute a risk to the health and safety of the workers. The ECJ recognised that long or frequent standby periods may place a psychological burden on the worker which may in turn make it hard for that individual to withdraw from work for a sufficient number of hours which may have an effect on his or her health and safety. This may particularly be the case if the standby period is at night, as the worker may struggle to rest properly due to the constant anticipation of being called upon.
Therefore, to summarise, the following factors may be taken into account to assess whether standby periods constitute as working:
- Whether the worker is required to be contactable and able to return to the workplace within a given period.
- Whether the above objectively and very significantly affect the worker’s ability to devote time to other interests.
- The required response time during the standby period (the quicker the response time, the more likely the standby period will be considered as working).
- The frequency with which workers are called upon during standby (the higher the frequency, the more likely the standby period will be considered as working).
The following factors will not be taken into account:
- The limited nature of the opportunities to pursue leisure activities within the immediate vicinity of the workplace.
- Constraints arising from ‘natural factors’ of the worker’s own free choice (e.g. their place of residence).
What does this mean for UK law?
As stated above, the ECJ rulings now no longer bind the UK. However, the UK courts and tribunals may have regard to the ECJ findings. Therefore, employers should be aware of these rulings and consider the fact that they may be applicable to standby time for the purposes of employment law in the UK.
In addition to the points on whether workers are to be considered as working whilst on standby, employers should also be aware of the implications of requiring workers to adhere to periods of standby time that are so long or so frequent that they constitute a risk to the health or safety of workers. Employers must ensure that their workers receive sufficient rest periods and take into account the frequency of requiring them to be on standby.
Employers would be sensible and cautious to consider that the above factors should be taken into account with regards to the Working Time Regulations due to the fact that courts and tribunals are able to have regard to such rulings.
If you have any further questions relating to the Working Time Regulations, please contact a member of the Employment team.