The law around what counts as ‘working time’ for the purposes of pay and breaks is confusing and there have been seemingly conflicting decisions involving travelling salespeople, nurses and care workers. The European Court of Justice (ECJ) has recently heard a case regarding a part-time firefighter who was on call 24 hours per day, seven days per week (except when he was taking annual leave). He could be called to assist with an emergency in no less than ten minutes, and was required to participate in at least 75% of the fire brigade’s interventions.
He argued that the time he spent ‘on call’ should be classified as ‘working time’. If that was the case, it was likely that there had been a breach of the rules regarding daily and weekly rest and maximum weekly working time under the Working Time Directive and under the Irish implementing laws.
Of particular importance to this case were three factors:-
1. That the firefighter was able to, and did, participate in other professional activities. In this case, he was a self-employed taxi driver.
2. That the firefighter was not required to stay in one place when he was ‘on call’.
3. That the consequence of the firefighter not attending within the specified time was simply that he did not get paid.
The question to be considered by the referring court was whether the firefighter was subject to constraints which limited his ability to manage his time, during the ‘standby time’, when his services as a retained firefighter were not required.
The ECJ concluded that as the firefighter was able to carry out another professional activity during the ‘standby time’ and was not obliged to attend the emergency call-outs, the ‘standby time’ was not working time as it did not significantly affect his ability to manage his own time during that period.
The rules surrounding the working hours of employees who are on standby are often very complex and fact sensitive and it’s unlikely we’ve heard the last of this subject!
We’re here to help your business with any employment law challenge. Get in touch with a member of the team today on 0161 833 5667 or email Gemma.Wilson@glaisyers.com