In a case on Czech firefighters, the ECJ found that standby time, when a worker could be called back to work at two minutes’ notice, should be classified as working time under the Working Time Directive.
The claimant, a firefighter, claimed that his breaks in fact counted as working time. He was allowed two 30-minute breaks per 12-hour shift. At certain times of day, he could spend this break at a canteen some 200 metres away from his workstation. However, he was required to remain on standby throughout his breaks, ready to be picked up at two minutes’ notice, in the event of an emergency.
The ECJ found that the standby time could only be classified as either working time or a rest period under the Working Time Directive, as no intermediate category existed. In these circumstances, it should be classified as working time. The court emphasised that each break was short and that it was possible to be called back at very short notice, with no certainty as to when this may happen. This meant that the worker was not able to plan, or was at least very strongly dissuaded from planning, any kind of recreational activity during these breaks.
Reviewing previous case law on this question, the court pointed to an earlier ECJ judgment, which held that standby time is not rest time merely because it is rare that the worker will be called upon to return to work. The uncertainty this created was likely to result in workers being on “permanent alert” during the breaks.
Takeaways for UK employers
Although ECJ judgments are no longer binding in the UK, our courts may have regard to decisions such as this if a similar question arises. Employers should reflect on their obligations under the UK’s Working Time Regulations, which give most workers the right to 11 hours’ uninterrupted rest per day, 24 hours’ uninterrupted rest per week (or 48 hours’ uninterrupted rest per fortnight) and a rest break of 20 minutes when working more than six hours per day.
However, it is worth noting that, in the UK, rights to fixed rest breaks do not apply to workers in the police, emergency services and armed forces when the working requirements of these sectors conflict with the provisions of the Working Time Regulations.
There has long been debate around time spent on call or on standby and, in particular, where the line is drawn between work and rest in these scenarios. Case law generally focuses on whether geographical or other restrictions are placed on the worker during that time. This case has provided further guidance on the types of restrictions that will limit an employer’s ability to name time away from the workplace as rest.