Do standby periods count as ‘working time’?

The ECJ has recently given two useful rulings on the circumstances in which standby time constitutes ‘working time’ for the purposes of the EU Working Time Directive, and which can be taken into account by courts and tribunals in the UK when applying the Working Time Regulations 1996.

In DJ v Radiotelevizija Slovenija and RJ v Stadt Offenbach am Main, the ECJ held that a period of standby time must be classified as ‘working time’, even if the worker is not required to remain at their workplace, if the constraints imposed on the worker are such as to ‘objectively and very significantly’ affect the worker’s ability to freely manage the time during which their professional services are not required and to pursue their own interests.

In considering the constraints imposed, the ECJ held that only those imposed on the worker (1) by law, (2) by a collective agreement, or (3) by the employer are relevant. Furthermore, that any organisational difficulties that a period of standby time may generate for the worker, which are the consequence of ‘natural factors or of his or her own free choice’, may not be taken into account. For example, time spent travelling a substantial distance between a worker’s freely chosen residence and the place that they must reach in a certain time, is not a relevant factor for classifying that period as ‘working time’.

The ECJ helpfully set out a number of factors that will be relevant when assessing whether constraints imposed on a worker during standby are such as to warrant classifying that period as ‘working time’, including:

• The required response time – is the worker allowed a reasonable time to resume their work such that they can plan personal or social activities, or is the worker required to return to work within a few minutes?
• The frequency with which workers are called upon during standby – is the frequency of such a level that there is less scope for the worker to manage their own time?

The ECJ highlighted to employers that, standby time that does not constitute ‘working time’, will be classified as a ‘rest period’ but that this classification is without prejudice to employers’ duty to comply with their specific obligations under the EU Health and Safety at Work Directive No.89/391. Even if standby time is not ‘working time’, workers are still subject to professional obligations during that time and, to that extent, are in their working environment. Long or frequent periods on standby may place a psychological burden on the worker, making it difficult in practice for them to withdraw fully from the working environment for a sufficient number of consecutive hours, so as to allow them to neutralise the effects of work on their safety or health.

Accordingly, employers must not establish periods of standby time that are so long or so frequent that they constitute a risk to the safety or health of workers, irrespective of those periods being classified as ‘rest periods’.

Advice

If you need assistance or advice on the contents of this article, please contact the Employment Team at Thackray Williams LLP on 020 8290 0440 or visit our website at www.thackraywilliams.com