The definition of working time includes any period of time during which a worker is working, at his employer’s disposal and carry out his activities or duties. Time spent ‘on call’, ie time during which the worker is required to be available and ready to work, may or may not satisfy this definition.
The recent decision of the ECJ in MG v. Dublin City Council has provided some welcome clarity on this point. MG was a firefighter who worked for the Council under a stand-by system at the fire station. His stand-by time was in principle 7 days per week and 24 hours per day. He was required to participate in 75% of the brigade’s interventions and had the option to abstain from the remainder. He did not have to be at a specific place but he was required to endeavour to arrive at the fire station within 5 minutes of an emergency call. He was required to live within a reasonable distance of the fire station. He could work on his own account for another employer provided that did not exceed 48 hours per week. He worked as a taxi driver during this time. MG said that his stand-by hours constituted working time and that his employer was in breach of the rules on daily and weekly rest breaks and maximum weekly working time.
The ECJ concluded that the purpose of the Working Time Directive is to lay down minimum requirements intended to improve the living and working conditions of workers in relation to the duration of working time. The ECJ disagreed and said that the stand-by time did not constitute working time: the constraints imposed on MG were not of such a nature as to constrain objectively and very significantly the ability held by MG to manage his time when not required to work as a retained firefighter.
When considering whether or not stand-by or on call time is to be regarded as ‘working ‘time’ under the Working Time Directive for the purpose of the maximum working week, rest breaks and rest periods, these are the relevant factors to consider:
- Whether the worker has to be in a specific place during their periods of stand-by time
- Where they are allowed to carry out another professional activity during stand-by time and if so, whether they can do so effectively for a significant portion of stand-by time
- Whether they can choose not to work when called upon by their employer and how frequently they can choose not to do so
- If they decide to work, the lime limit for that worker to return to work, and
- The average frequency of the activities that the worker is actually called upon by their employer to undertake.
This judgement was published on 11th November 2021 and therefore due to Brexit and Section 6 of the European Union (Withdrawal) Act 2018, it is not binding on UK courts and tribunals. However, the UK courts and tribunals may have ‘regard to’ this decision and so we can treat it as being a persuasive precedent.
Changing contract terms? Some new ACAS guidance
ACAS has published guidance to help employers consider and deploy all options before using fire and rehire practices to change terms and conditions of employment. ACAS Chief Executive Susan Clews said, “our new advice is clear that fire and rehire is an extreme step that can serious damage working relations and has significant legal risks for organizations. Employers should thoroughly explore all other options first and make every effort to reach agreement with staff on any contract changes. Organizations that consult with their workforce in a genuine and meaningful way about proposed changes can help prevent conflict at work and stay within the law”. The advice can be found here guidance. In short form: consult, stay focused on the benefits of consensus and compromise and keep the discussions constructive.