
Dementia currently affects 1 in 14 people in the UK. Many people will either know someone with dementia, have had to support and care for someone with dementia or have been diagnosed themselves.
A recent ECJ case concerning the interpretation of 'working time' under the Working Time Directive (WTD) may well prove relevant and pertinent to the housing and social care sector where staff, such as maintenance operatives and care workers, provide on-call standby services as part of their role.
The definition of working time under Article 2 of the WTD is as follows: "any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice". This is mirrored in the definition under the Working Time Regulations 1998 (WTR) which enshrined the WTD into UK law.
Facts
The Slovenian Supreme Court referred a case concerning DJ, a specialist technician working in transmission centres. The German Administrative Court‘s referral involved a firefighter, RJ. (DJ v Radiotelevizija Slovenija and RJ v Stadt Offenbach am Main)
DJ travelled around the various transmission centres and, because of the distances between these centres and his home, he often had to stay in the vicinity of the centres whilst on standby. During standby, DJ had to remain contactable and able to return to the workplace within an hour. RJ, whilst on standby as a firefighter, had to be reachable at any time and have his uniform and service vehicle with him. He was required to pick up calls and advise on actions to be taken. Sometimes he had to attend the incident. During his standby time, he needed to attend to an incident within 20 minutes.
The question put before the ECJ in both cases was whilst DJ and RJ were on standby, was this working time? This was key in the context of the Working Time Directive as working time then determines paid holiday, rest breaks and maximum working hours in the week.
The decision
In both cases, the standby time was, the ECJ ruled, 'working time' for the purpose of the WTD. This was the case even though the worker was not required to remain at their workplace. Key to this decision, however, was the nature of the constraints on the worker during this standby time. The court ruled that the time was only regarded as working time if the constraints during standby;
Applying this, the ECJ noted that constraints such as a worker living too far away from their workplace to return home during standby periods, was not a relevant criterion for classifying standby time as working time. That was not a constraint imposed by the employer but rather a consequence of the worker’s free choice of where to live. Similarly, a lack of activities or 'leisure opportunities' in the area where a worker is on standby, does not create a constraint.
In expanding further on this the ECJ noted certain relevant factors when assessing whether certain constraints mean standby time was working time;
It did note that this contrasted with a previous decision, Federación de Servicios Privados del sindicato Comisiones obreras (CC OO) v Tyco Integrated Security SL and anor, which held that workers who do not have a regular or fixed place of work, time spent travelling to their first place of work and from their last place of work, as designated by their employer, is working time.
Implications
Clearly, the UK courts are not bound to follow this judgment. It concerned the WTD and was decided after the UK left the EU. That said, the provisions of the WTD are mirrored in our WTR and we would think at this point that the UK courts will take the decision into account. With that in mind, we would advise the following;
If you need any further clarification on this issue or further advice please do contact Katherine Sinclair, a senior associate in our employment and pensions team.
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