UK: ECJ clarifies when periods of standby are 'working time'

Employers who engage workers on standby or on-call shifts will welcome the clarity provided by two recent European Court of Justice rulings.  The ECJ has ruled that on-call or standby time should not be viewed as working time under the Working Time Directive (relevant to calculating the maximum working week, rest breaks and rest periods) unless the constraints imposed on the worker by national law, collective agreement or the employer very significantly affect the worker's ability to manage their free time and devote that time to their own interests.

The assessment of this impact should take into account how quickly the worker needs to be able to return to work if called in (whether this in practice means having to stay at home, particularly if specific equipment must be to hand), the average frequency of activity during standby periods, and the duration of the activity when called in.

Constraints caused by other factors, such as how far away the employee has chosen to live or the limited leisure opportunities in the area near the workplace, are not relevant to the assessment.

Although UK tribunals are not bound by these decisions (as they were given after 31 December 2020), they are highly likely to inform how tribunals interpret the UK's Working Time Regulations.

However, employers should bear in mind that they also have health and safety duties which could be breached by frequent or prolonged standby requirements, particularly at night, even if the time counts as a 'rest period' for working time purposes.  The ECJ noted that a recurrent psychological burden (even of a low intensity) on the worker might make it very difficult for the worker to withdraw fully from their working environment for a sufficient number of consecutive hours to neutralise the effects of work on their health or safety.

(DJ v Radiotelevizija Slovenija C-344/19; RJ v Stadt Offenbach am Main C-580/19)