The ECJ recently issued a judgement that examines “working time” for the purposes of the Working Time Directive.
The worker may not literally be performing their role but equally they may not have complete freedom to pursue their own interests. Should this be working time?
Working time has always been a thorny issue, particularly in the context of more unusual arrangements such as workers being on standby. This judgement gives employers greater understanding of what working time is.
This article concerns an ECJ judgment on the meaning of “working time” for the purposes of the Working Time Directive, which was implemented in the UK by the Working Time Regulations. Domestic courts and tribunals may “have regard” to post-Brexit ECJ case law so far as it is relevant to domestic law.
Employers should therefore be aware of this decision.
However, it’s important to note that “working time” for the purposes of the Working Time Directive and Regulations is not the same as “working time” for National Minimum Wage (NMW) purposes. This decision therefore has no bearing for NMW.
You would be forgiven for thinking that what is working time should be simple. However, unfortunately it has been the subject of significant caselaw and is a complex issue. This is particularly the case where part of the workers role includes standby or on call time. The worker may not literally be performing their role but equally they may not have complete freedom to pursue their own interests. Should this time be working time?
In this case, a worker (DJ) worked as a technician who provided maintenance to two television transmission centres in the mountains of Slovenia. As you can imagine, these locations are fairly remote.
In addition to his normal shifts, DJ would spend time on standby. During a period of standby, he was not required to remain at his place of work but had to be contactable by phone and able to attend in one hour to work, if required. Due to the remoteness of the locations and distance from his home, in practice while on standby DJ stayed at his place of work and in accommodation provided by his employer. Again, due to the location, there was very limited opportunity for DJ to pursue leisure activities.
DJ brought a claim in the Slovenian courts arguing the standby time was working time under the Working Time Directive. The Slovenian courts asked the ECJ to consider whether standby time was working time, in DJ’s circumstances.
The ECJ made the following observations:
It is clear from the ECJ’s decision that they placed weight on whether the worker was “objectively and very significantly” prevented from pursuing their own interests as a result of obligations pursued by the employer rather than the practical reality of attending work.
This judgment will provide some assurance to employers that standby time may not be working time. However, careful consideration needs to be given to the constraints imposed on workers when on standby and how much these constraints prevent the workers from pursuing their own interests.
© 2021 KPMG LLP a UK limited liability partnership and a member firm of the KPMG global organisation of independent member firms affiliated with KPMG International Limited, a private English company limited by guarantee. All rights reserved.
For more detail about the structure of the KPMG global organisation please visit https://home.kpmg/governance.