352: When is standby time considered as working time?
Having to be back at work within 10 minutes sounds like a tight ‘turnaround’ time, but it may not be tight enough to be considered working time.
In a recent case, the ECJ has ruled that the time a firefighter spent on standby was not working time because the constraints imposed on him did not significantly affect his ability to manage that time. In MG v Dublin City Council, a firefighter worked as a taxi driver during his standby time but could be recalled to his firefighting duties within 10 minutes. Despite such a tight turnaround, this did not constitute working time for the purposes of the EU Working Time Directive.
The firefighter was on standby for 24 hours a day, seven days a week, except during periods of annual leave, and argued that since he was required to respond to at least 75% of callouts, this time could not be considered a rest period. He brought a claim alleging that these requirements breached the rules on daily and weekly rest and maximum weekly working time under the EU Working Time Directive and the relevant Irish legislation.
His employer argued that the standby time could not be classed as working time because he could engage in other activities, and did in fact work as a self-employed taxi driver; he was not required to remain in a particular place; and if he failed to arrive at the fire station within 10 minutes of an emergency call, the only consequence was that he would not be paid.
The firefighter was free to carry out another professional activity during standby time and did not have to remain in a designated location. Nor was he obliged to respond to every emergency callout. This case can be contrasted with another recent ECJ decision, XR v Prague Public Transport Co, where a firefighter’s standby time was classed as working time because his ability to manage his own time was much more significantly constrained by the requirement to attend an emergency on two minutes’ notice.
These ECJ decisions are a useful reminder of the factors which are relevant to deciding whether standby or on-call time is working time. Following Brexit, neither case is binding the UK. However, courts and tribunals may still take them into account when applying the Working Time Regulations 1998.