Do you have ‘Workers’ who spend time ‘on call’ asks Chris Wilkinson from Expert HR Solutions. If so the latest ruling from the Court of Justice of the European Union (CJEU) may affect you. Read on to find out why and what the consequences could be.
The case involved volunteer firefighters who are involved in operations, standby services and other duties at the fire station, which are arranged by roster at the start of each year. They are paid an annual allowance for their standby work. The case was originally heard in 2009 when a firefighter brought legal proceedings against his employer for a failure to pay sufficient remuneration for his services as a volunteer firefighter during his years of service. In particular, he claimed that his standby services should be categorised as working time. The case was upheld, but the employer appealed, and although the appeal was partially upheld the CJEU was asked to rule on whether the standby services should be classed as working time.
The CJEU established that the firefighter was a worker. Although he held a voluntary, rather than a professional, status in his country, this did not affect his definition as a worker according to case law. The nature of an employment relationship under national law cannot determine whether or not the person is a worker under EU law.
The court was also asked to rule on whether Matzak’s standby work should be considered to be working time under the directive, despite his being at home while on call, “given the constraints on the worker at the time preventing him from undertaking other activities”.
It found that, if the standby period, in the form of physical presence at the place of work were excluded from the concept of working time, it would seriously undermine the objective to ensure workers’ safety and health by granting them adequate rest periods and breaks.
While the firefighter spent his standby duties working at home, he was obliged to respond to calls from his employer within eight minutes, and to be physically present in the place determined by his employer. Under such circumstances, it was impossible for the worker to choose where they wanted to be at that time, rendering the working hours within the worker’s normal working duties, the CJEU said.
The obligation to remain physically present at the place the employer determined and the geographical and temporal constraints resulting from the need to reach his place of work within eight minutes objectively limited the opportunities that a worker in his circumstances had for his own personal interests, the court found. This differed from a worker who must simply be at his employer’s disposal to ensure it is possible to contact him during standby duty.
In effect this ruling means that the greater the restrictions on a worker when on call but not working the more likely it is that the on-call period will be regarded as working time. This may then have implications in relation to compliance with rest periods, working hours and the national minimum wage.”
Chris advises Employers to consider carefully whether they need to place significant restrictions upon employees’ activities when they are on-call. If you want help on this or any other employee issue why not give Expert HR Solutions a call on 01202 611033, the first 15-minute consultation is free.