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Can time spent at home on stand-by be work requiring payment?
Time spent on stand-by or on-call has been the subject of much debate in recent years, especially considering the ruling last year where it was held that care workers who worked sleep-in shifts were entitled to be paid the National Minimum Wage for them. In another ruling, the Court of Justice of the European Union (CJEU) in the case of Ville de Nivelles v Matzak looked at whether time spent at home whilst on stand-by could be classed as working time.
Mr Matzak had served as a volunteer retained firefighter in Belgium since 1980. As part of his role he was required to remain on stand-by duty on set days which were notified to him at the beginning of each year. During this time he had to be contactable and to remain within 8 minutes travelling time of the fire station. In consideration for being on stand-by all staff, whether voluntary or professional, were paid an annual allowance. Subsequently, in 2009 Mr Matzak brought a claim against the town of Nirvalles who employed him for failure to pay him the appropriate remuneration for his services as a firefighter during the time he was on stand-by.
The CJEU therefore had to consider whether the time Mr Matzak spent on stand-by was in fact work which he was required to be paid for. Subsequently, it was held that, where a worker had to be physically present at a location determined by their employer and they had to be available for work at short notice, the time spent doing so would fall within their normal working duties. Notably, the CJEU found that the requirement to be 8 minutes away “significantly restricted” his freedom.
However, it should be noted that this case does differ where a worker is required to be on stand-by, but is simply at their employer’s disposal in as much as it must be possible to contact them. In such a scenario it would be unlikely that their freedom would be “significantly restricted.”
What would be best practice?
In a scenario where you are exercising direct control over any worker who is on stand-by with regards to where they have to be and they are in turn required to respond to your call, you should ensure that they are paid at least the National Minimum Wage during this time. Importantly, where the requirement upon the employee to respond is “significantly restricting” then the time they spend on stand-by is more likely to be deemed to be working time. Conversely, where there is no requirement on the employee to respond, it is less likely that this could be perceived as being working time.
If you need any assistance with managing working time, then please don’t hesitate to contact a member of the team.