Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
The European Court of Justice (ECJ) has given a Judgement in Ville de Nivelles v Matzak on whether stand-by time constitutes working time under the Working Time Directives. Employers should be aware of the Judgement due to the potential implication on the Working Time Regulations.
Article 2 of the Working Time Directive (WTD) defines "working time" as any period during which the worker is:
- at the employer's disposal; and
- carrying out their activity or duties in accordance with national laws and/or practice.
Article 2 further defines "rest period" as meaning any period which is not working time.
The WTD was implemented in Great Britain by means of the Working Time Regulations 1998 (WTR).
The issue of what time counts as “working time” for the purposes of the WTD/WTR is relevant when determining:
- entitlement to rest breaks;
- compliance with the maximum 48 hour average working week;
- annual leave entitlement.
Whether or not time counts as “working time” for the purposes of the WTD/WTR, is not however not directly relevant to working time for National Minimum Wage (NMW) purposes.
Mr Matzak was a retained fire fighter for Ville de Nivelles, Belgium. He was required to be available, on call, for one week out of every four during evenings and weekends. Whilst on standby time, Mr Matzak had to remain contactable, and be able to report to the fire station as soon as possible but within no more than eight minutes under normal conditions. Mr Matzak was paid only when he was on active service, all other time was deemed stand-by time, which was unpaid.
Mr Matzak brought proceedings in the Higher Labour Court in Brussels against his employer and complained that standby time should count as “working time” for the purposes of the WTD. Mr Matzak also alleged that he should be paid for stand-by time.
The Higher Labour Court in Brussels, Belgium, referred to the ECJ the question of whether the on-call time undertaken at the home of the worker, which very significantly restricts the opportunities of the worker to undertake other activities should be regarded as working time under the WTD. The ECJ did not consider the question of whether this time should be paid for, as the WTD does not apply to the remuneration of workers.
The ECJ held that stand-by time which significantly restricts the employees’ opportunities for other activities, must be regarded as “working time” for the purposes of the WTD. Emphasis was placed on the quality of the time that the employee could utilise whilst on stand-by time, for example the ability to undertake his own interests and spend time with his family.
The judgment was clear that stand-by time does not automatically constitute working time for the purposes of the WTD, but cases will need to be considered on a case by case basis.
This case may be a cause for concern for employer who have on-call arrangements. It is clear that employers will need to consider what restrictions they place to staff whilst on-call and whether there is a risk that arrangements in place could be said to constitute “significant restriction” and therefore stand-by time count as “working time”. Unfortunately, no guidance has been provided by the ECJ as to how to assess the quality of time that the employee is utilising whilst on stand-by. We would highlight however that in this case in particular it was deemed that the need to report to the fire station as soon as possible, but within no more than eight minutes, was a significant restriction on Mr Matzak’s quality of time during his stand-by time.
In light of the ECJ’s ruling, employers will need to make sure that where appropriate stand-by time is taken into account when calculating:
- entitlement to rest breaks;
- compliance with the maximum 48 hour average working week; and
- annual leave entitlement.
National Minimum Wage
As mentioned above, the ruling is not directly relevant to working time for NMW purposes. Employers should be aware however that “on call” periods could also constitute “working time” for NMW purposes, and any on-call arrangements will need to be considered carefully to determine whether the worker is treated as working during such periods. Areas to consider will include the contractual requirements imposed on the worker including whether the worker is restricted to a place specified by the employer.
For more information
For more information on the Working Time Regulations or the National Minimum Wage rules, please get in touch with your usual contact in our Employment Team or speak to Anna Dabek. You can find out more about our employment work on our website.
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