In a recent decision under the EU Working Time Directive (WTD) the influential opinion of the Advocate General (AG) of the European Court of Justice, which the Court usually follows, was taken on what counts as ‘working time’.
If you are on standby duty, say at home, are you working for the purposes of the EU WTD?
In a case involving a Belgian firefighter required to be on call, the firefighter claimed his time on call was working time. He was on call in the evenings and at weekends, one week in four. While on-call he had to remain contactable and, if required, be at the fire station within 8 minutes.
The AG said that being on call does not automatically amount to ‘working time’. It depends more on the potential quality of the time spent while on call and the extent to which that quality is undermined by the restrictions imposed by the employer. The required proximity of the employee to the workplace is not necessarily the deciding factor. Equal emphasis must be given to other factors affecting the actual quality of the time spent on call.
In the AG’s opinion it was for the Member States, in each case, to decide whether the quality of time spent on call has been undermined by employer restrictions to such an extent that it should count as ‘working time’.
