The draft regulations making it mandatory for anyone entering a registered care home in England to have been double vaccinated unless they are clinically exempt were made on 22 July 2021.
The free movement of workers may have stopped on 1 January this year but the free movement of ECJ decisions is not so fettered! Under s6(2) of the European Union (Withdrawal) Act 2018, courts and tribunals may 'have regard' to post-Brexit ECJ case law as far as is relevant.
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.
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.
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;
- objectively and very significantly affected their ability to manage their time; and
- were constraints imposed by the law, a collective agreement or by the employer.
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;
- The period of response time the employer requires of workers on standby; the shorter the period the more likely that time is to be working time;
- The frequency of the callouts may also be key; the higher the frequency the more likely the standby time will be 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.
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;
- Identify the workers to whom this case might apply. Here are some suggested examples;
- Care staff who, once a month, are required to participate in a Saturday night call-out scheme whereby they need to be available to respond to any emergencies from service users in a defined area.
- Gas operatives who participate in a regular emergency call-out to service users.
- Emergency Maintenance Operatives who work three nights a month on standby should they be needed within their geographical area.
- Team of school caretakers who share the responsibility at weekends of responding to any issues on the premises.
- What restrictions are in place for these staff whilst on standby? Are they given a reasonable time to respond to a call-out? How often do call-outs occur? (Note that applying the judgment, the worker’s home address is not a factor within this calculation.)
- Are restrictions strict enough to deem the standby time working time? If that is the case, is there anything that could be done to loosen the restrictions, free up the workers to pursue more leisure time during standby and so reduce the cost of these standby shifts? Be wary of making changes to existing arrangements without specific legal advice given the risk of claims for unlawful deduction of wages or even constructive dismissal claims.
- Is it clear to workers what the restrictions are during the standby periods of work and whether this time is working time for the purposes of the WTR?
- It is important to note the difference here between calculations under WTR and those for the purpose of measuring National Minimum Wage (NMW) payments. Ensure your HR team are clear about the differences between working time for the WTR and the NMW. The former measures working time for the purposes of rest periods and paid holiday and the latter concerns the calculation of working time for the payment of the NMW. Do note our ebrief on a recent case concerning the measurement of working time for the purposes of NMW calculation.
For more information
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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