It’s twenty years this year since the Working Time Regulations 1998 came into force, and yet certain aspects have not been settled law with issues around people being ‘on-call’ and what is ‘working time’ continuing to be reported. The latest case involves volunteer firefighters in Belgium and the extent to which those individuals when they were on-call, outside of the workplace would be considered to be ‘working’ even if they weren’t actively engaged in work duties at the time.
A firefighter bought a claim for failure to pay him sufficient remuneration for his services, claiming that the time that he’d spent on stand-by should be categorised as ‘working time’. This went as far as the Court of Justice of the European Union and the court was asked to rule on the correct definitions under then Working Time Directive and to decide whether the firefighter’s stand-by services would be classed as ‘working time’.
The Court was also asked to consider whether volunteers are ‘workers’, and perhaps unsurprisingly the Court found that they are. Although the firefighter held a voluntary role rather than a professional one under Belgian law, in effect his definition as a ‘worker’ under the EU law position overrode the Belgium local and national laws. This probably has wider implications for any organisations with a volunteer workforce here in the UK to e.g.:- to require us to ensure that volunteers are taking the appropriate rest breaks.
On the question of ‘working time’ the EU definition under the Directive is “any period during which the worker is working, at the employer’s disposal and carrying out his activities or duties, in accordance with national laws and/all practice”. So by being at home whilst he was on-call the employee was not working but he was constrained from being able to carry out other activities at that time. He was obliged to respond to calls from his employer within eight minutes and be physically present in a particular place determined by his employer, so he was not free to do as he liked.
The Court’s view was that if stand-by periods were excluded from the concept of working time it would undermine seriously the objective of ensuring workers safety and health by granting them adequate rest periods and breaks.
The Court emphasised that as it was impossible for the worker to choose where they wanted to be at the time, it made the time ‘working hours’.
This can probably be differentiated from employees who have to be at their employer’s disposal but are free to go wherever they like. Clearly any employer should consider their on-call employees and whether or not they fetter what the employee is doing during that on-call time.
To me this brings forward the spectre of employees who are being sent for overseas travel, claiming that all the hours they are on the aeroplane or train or motorway (a grey area up until now) are working because they’re not free to be wherever they like at that time.