02 March 2018

This month, the Court of Justice of the EU (CJEU) in the case of Ville de Nivelles v Matzak held that stand-by time spent at home must be regarded as ‘working time’ if the employer has imposed constraints of geography and time on the worker which objectively limit the worker’s opportunities to pursue personal and social interests.

M. Natzak was a retained firefighter employed by the town of Nivelles in Belgium. He was required to be on stand-by, unpaid, one week out of every four, during the evenings and at the weekend. During those times he was obliged to remain contactable and, if called, to report to the fire station within no more than eight minutes under normal conditions. He claimed that he should be paid for time spent on stand-by duty.

The Labour Court in Belgium referred the case to the CJEU. It held that where a worker is required to be physically present and available at a place determined by the employer, this must be regarded as ‘working time’. However, that might not be so where the worker is required to be permanently accessible but not present at the place of work. In such circumstances – since the worker can manage his or her time and outside interests with fewer constraints – only time linked to the actual provision of services is ‘working time’ (though the intensity of work and the amount of work output are not determinative of what is ‘working time’).

But in this case, the crucial fact was not simply that M. Matzak needed to be contactable while on stand-by, he was also required to respond to calls within eight minutes and that meant that he had to be physically present at a place determined by the employer, in this case his home rather than his fire station. These limitations of geography and time objectively constrained his opportunities to pursue his personal and social interests. That made his time on stand-by, ‘working time’. The case has relevance for many UK workers who spend unpaid time on stand-by.