The standby arrangements for Belgium’s volunteer firefighters are set to cause new headaches for employers with workers who are paid flat rates for time on-call or when sleeping in the workplace, with a judgement that will affect companies across the European Union.
The Court of Justice of the European Union (CJEU) has ruled that volunteer firefighter Rudy Matzak is a ‘worker’ and that within the meaning of the Working Time Directive his time on standby is ‘working’ time.
Under that Directive, ‘working time’ refers to “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice”. It applies to all sectors, including both public and private, and ‘rest period’ refers to any period not classed as working time.
When he was on call, Mr Matzak had to be at home and able to fulfil the requirement of an eight minute response time to reach the fire station, and the Court said that this obligation to remain “physically present at the place determined by the employer and the … constraints resulting from the need to reach his place of work within eight minutes” meant that he was limited in how he could pursue his personal and social life. This contrasted with a worker who may be asked simply to be contactable.
The knock-on effect for employers of standby time being deemed to be working time is that it has to be taken into account when complying with rest periods, working hours and the National Minimum Wage.
The judgement follows hard on the heels of last year’s hearing by the Employment Appeal Tribunal of three cases – Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake – which said that businesses must conduct a ‘multifactorial evaluation’ as there was no clear, hard and fast way to distinguish between on-call workers who are considered to be ‘at work’ and those who are not. In that judgement, the factors highlighted as likely to be a ‘working’ situation included whether an employee was on site to comply with a regulatory or contractual obligation, whether they would be disciplined for failing to remain on stand-by, and if they had to keep a listening ear and respond, and the extent to which they had to initiate action.
“This latest judgement adds to the already complex minefield for compliance with on-call workers,” said Huseyin E. Huseyin, Senior Partner at Bowling & Co. “It’s in Belgium, but as we are still part of the EU, it is just as important here.
“Whether or not a worker on standby is ‘working’ will depend on the circumstances of each case, but the fact that the issue is complicated with grey areas does not mean that businesses can ignore it – ignorance of the law has never been a valid defence. Back-pay for up to six years could be due and that could mean substantial sums.
“For any situation that seems unclear, it’s worth getting some independent advice. An easily made change to the way that on-call systems are operated might clarify things and take an employee out of a potential ‘working’ situation.”
In any situation where the on-call claim is found to be ‘working’ time the National Minimum Wage Regulations (NMW) will apply. The NMW Regulations apply to any eligible worker, whether or not they are paid by the hour and calculations must be made according to the payment basis, to check if the equivalent hourly rate is at the right amount. New rates for the National Minimum Wage come into force from April 2018, applicable to the various rates, including the National Living Wage for eligible workers aged over 25, and other age-related rates.
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