Firefighter Rudy and the working time mystery
Do you have workers who are on-call and may need to come into work when called, even when they are off-site? It can be difficult to know when they…
Do you have workers who are on-call and may need to come into work when called, even when they are off-site? It can be difficult to know when they are working and what they must be paid. The important Judgment of the European Court in Ville de Nivelles v Rudy Matzak (about an on-call firefighter) provides us with some important guidance on when being on-call must be working time, even potentially being when an employee is at home.
Rudy Matzak is a firefighter in Belgium. Under the terms of his contract, he is required to live no more than eight minutes travel from the fire station in normal traffic. When on stand-by he has to be ready to respond to a call immediately, and at all times remain within the same eight minutes travel of the station. So when on-call he can be at home, but he has very significantly restricted opportunities for other activities. He claimed for pay for the hours during which he has been on stand-by, and this has led to the European Court being asked to decide whether that was working time under the Working Time Directive (although the Directive itself does not entitle him to pay).
The European Court has decided Rudy Matzak’s stand-by time must be regarded as working time, even if he was at home. The key points it identified are:
- Working time and a rest period are mutually exclusive, stand-by must be one or the other;
- Intensity of work and required output, are not necessary for working time;
- Required physical presence and availability of the worker at the place of work with a view to providing services, must normally be regarded as working time;
- A worker being required to be physically present at a place determined by the employer and to be available to the employer to provide services immediately, where it is impossible for the worker concerned to choose the place where they stay during stand-by periods, must still be regarded as coming within working time; and
- The situation is different where the worker performs a stand-by duty which requires that the worker be permanently accessible without being required to be present at (or near) the place of work. Even if he is at the disposal of his employer (since it must be possible to contact him), in that situation the worker may manage his time with fewer constraints and pursue his own interests, and accordingly only the time linked to the actual provision of services must be regarded as working time.
The Court weighed up the factors in this case. It did understand that the place at which Mr. Matzak was required to be, could be his home, and not (as is more usual in the test cases) his place of work. It emphasised however that the geographical and temporal constraints resulting from the requirement to reach his place of work within eight minutes limited the opportunities which he had to devote himself to his personal and social interests. In the light of those constraints, the Court concluded that Mr. Matzak was working when on-call.
What does this mean for me?
We know that many of you struggle to identify what exactly is working time for those who work for you. This case may be important in showing where the line should be drawn under European law (to which we remain subject). An employee at home is still working if they have to be able to respond immediately and if they must be within eight minutes of the workplace. However someone away from work who might be contacted, but they can otherwise do what they like, is not working unless they are called. In our experience employers have a huge variety of similar arrangements. This Judgment is unlikely to precisely mirror your own arrangements and therefore will not provide many absolute answers, but it does provide the European parameters against which your arrangements will be judged.
This case is consistent with a previous Scottish EAT Judgment that paramedics required to be within three miles of the ambulance station and respond within three minutes, were working when on-call. So whilst it extends the area covered, it is not a surprise. However it does demonstrate that the direction of travel in both European and UK cases appears to be to broaden the circumstances when people on-call will be working. Working time is of course not only important for breaks, but also for minimum wage and claims for pay for time worked. Whilst the precise legal tests in each area do not correlate with each other, nonetheless the outcome of key cases such as this undoubtedly must influence the likely outcome, whichever test is applied.