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Is time spent on standby working time?

GO
BY Gerry O'Hare
Employment law
BG Purple

Have we been looking at time spent on standby the wrong way? Well, maybe, suggests an Advocate General in a case which is making its way through the European Court of Justice. The case in question, Ville de Nivelles v Matzak, is about whether or not time spent by firefighters on “standby” counts as working time for the purposes of the Working Time Directive.

The traditional approach to determining whether standby time is working time is to consider a range of factors, with prominence placed on any requirement by the employer that the worker must be at a particular place. This has been seen as indicating that the worker is not free to spend their time as they wish. However, Advocate General Sharpston suggests that location should not be the primary factor. Rather, equal weight should be given to the “quality” of time the worker experiences. For example, is the worker free to spend the time with family or their own interests?

This approach might mean that on-call time spent in the worker's own home could qualify as working time where their freedom to engage in rest activities during that time is severely impacted, even if they are not required to at a certain location by their employer.

However, this guidance is not yet binding on employment tribunals in the UK. Advocates General give opinions to the ECJ as a way of assisting the court with its decision, but the opinions are not binding on the court, which is free to take another view. 

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