Following the recent Court of European Justice (CJEU) case of Ville de Nivelles v Matzak, employers would be well advised to consider giving their stand-by polices a spring clean and checking whether any conditions relating to stand-by duties are a necessity. This is especially true where the operation of a stand-by policy places restrictions on:
- the geographical proximity of the worker to the workplace during periods of stand-by and
- the travel time from their home to the workplace.
If those conditions significantly restrict the workers freedoms to carry out personal and social activities this may cause the stand-by time to be categorised as working time. The inevitable consequence of the stand-by being classed as working time is that workers are likely to request that they should be paid remuneration for all the hours which they are on stand-by duty regardless of whether they have performed any work.
From the facts of the Ville de Nivelles v Matzak case it would appear that placing a condition on employees to report back to the business premises within 8 minutes of receiving a call is likely to result in the stand-by time being regarded as working time.
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"...stand-by time which a worker spends at home with the duty to respond to calls from his employer within 8 minutes, very significantly restricting the opportunities for other activities, must be regarded as ‘working time’.