Can stand-by time spent at home but within 8 minutes travel of a workplace be 'working time'?
Yes, held the CJEU, in Ville de Nivelles v Matzak.
The Claimant had served as a volunteer retained firefighter for the Belgian town of Nivelles since 1980. Whilst on 'stand-by duty', he had to be contactable and within 8 minutes travelling time of the fire station. All staff (professional and voluntary) were paid an annual allowance for stand-by shifts, and the Claimant claimed that he had not been paid appropriately for this time.
Amongst the issues the CJEU had to consider was whether stand-by time was working time (having decided that the Claimant was a worker). The Advocate General had suggested that the quality of the time a worker would spend on stand-by was more important that the restriction on where they should be. The CJEU rejected this, noting that the intensity of work did not determine whether time was working time or a rest period.
The CJEU went on to decide that when a worker had to be physically present at a place determined by the employer (even if their own home) and available to work at short notice, making it impossible for the worker to choose where to be, then that would come within their normal working duties. Therefore, in this case stand-by time was working time. It would then be for the national court to determine whether the Claimant had been properly paid for this time.
Thanks to James English of Hempsons solicitors for preparing this case summary.