308: When does time spent on standby count as ‘working time’?

‘Working time’ under the EU Working Time Directive (WTD) means any period during which a worker is working, at the employer’s disposal, and carrying out their duties. Any period which is not working time counts as a rest period. The issue of whether time spent on standby counts as working time has been the subject of conflicting case law. However, the European Court of Justice (ECJ) has provided welcome clarification in two recent cases, DJ v Radiotelevizija Slovenija and RJ v Stadt Offenbach am Main.

In each case, the workers argued that although they were not contractually required by their employer to remain at a designated place during standby, in reality they had little choice but to remain at their workplace or at their home, so their standby time should be treated and paid as working time. The Slovenian case concerned a technician responsible for the operation of two television transmission centres situated in the mountains. Whilst on standby, he was not obliged to remain at the transmission centre but had to be contactable and able to return to work within one hour. Due to the remote location, this meant that in practice he had to stay in on-site accommodation provided by his employer, with very limited opportunities for leisure activities. The other case concerned a German firefighter who was required to be reachable at all times during periods of standby and to be able to reach the town boundary within a 20 minutes response time, in uniform and in his vehicle.

The ECJ highlighted the key factors to consider when assessing whether standby is working time:

• standby time is either working time or a rest period under the WTD. There is no intermediate category;
• if a worker is required to be physically present at a place determined by their employer and to be able to provide their services immediately, this is working time since inevitably this means being away from their family and social life and having little freedom to manage their free time;
• even if there is no requirement to remain at the workplace, standby will also be working time if the worker is still subject to constraints which have a very significant impact on their ability to pursue their personal and social interests. These constraints may have been imposed by their employer, national law or collective agreements;
• an assessment of the impact of these constraints should include considering how quickly the worker must return to work if called in, what equipment they need, how often and for how long they actually work during standby periods, and whether in practice being on standby means having to stay at home. For example, if a worker is called on frequently and generally spends a long time working, the whole standby period is likely to be working time; and
• practical difficulties unconnected to the employer’s requirements are not relevant, such as how far away the worker has chosen to live, or limited leisure opportunities near the workplace.

Both cases were sent back to the relevant national court to be decided on their facts in line with the principles set out by the ECJ. Despite Brexit, these principles may still be taken into account by courts and tribunals in cases involving the Working Time Regulations 1998, which implement the EU WTD. Employers are therefore advised to check that their specific standby and on-call arrangements comply with this ruling. The ECJ also stressed that even if a period of standby is classified as a rest period, employers are still under a duty to prevent health and safety risks caused by frequent or prolonged standby requirements, particularly at night.