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Stand-by time at home should be considered working time if the individual is restricted in undertaking non-work activities says the ECJ.

BY Donald MacKinnon
Employment Law & HR
BG Purple

The Court of Justice of the European Union has held that stand-by time where a worker is required to attend work within an eight-minute time frame and therefore is restricted to what he can do whilst on stand-by, should be included as working time for the purposes of the Working Time Directive 2003.

The case Ville de Nivelles v Matzak (C-518/15) concerned a Belgian fire fighter who was required for one week in every four to be on stand-by during the evenings and weekends. This also required that he had to be contactable and possibly need to be at the station within eight minutes of the call. This meant that he needed to live near the station and his activities were restricted while on stand-by. He was not being paid for this time and complained that this should be changed. The High Court in Brussels referred the case to the ECJ for a preliminary ruling.

The court held that this time should be considered working time. In justification, the Court said that Mr Matzak was required to remain physically at home as he had to be at the station with the 8-minute window, which severely limited workers like Mr Matzak from the opportunity to carry out their own personal interests. This is distinctly different from a worker who merely needs to be contactable while on call and therefore has more freedom to pursue their own interests.

This case confirms that an individual’s outside interests being affected is a deciding factor regarding whether on call time should be considered working time. Both the court and Advocate General, who made an initial opinion, agree that the quality of the time spent on call is of utmost importance. The only divergence between the Advocate General and the ECJ was the importance of the eight-minute time frame. The Court held that this was a critical factor in this case yet the AG said it should not be a determining factor.

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