In the recent judgment of DJ v Radiotelevizija Slovenija, the Court of Justice of the European Union (ECJ) has decided that periods of stand-by time will only constitute ‘working time’ in their entirety when, during those periods, the constraints imposed upon workers very significantly affect their ability to manage their free time.
The claimant worked as a technician at a transmission station situated at the top of a mountain. He worked a shift pattern with each shift being 12 hours long. He then had 6 hours where he was on stand-by. During the stand-by period the claimant could leave the workplace, however, he had to be contactable and return to the transmission station within one hour when required.
The nature of the work and the distance between his home and place of work meant, in reality, that the claimant had to stay in the vicinity all day, with little opportunity for leisure activities. His employer provided accommodation at the station due to its remote setting, which the claimant was entitled to use.
The claimant brought a claim in which he argued that the periods when he was on stand-by were so restrictive that they were tantamount to overtime, irrespective of whether he was specifically called on to work during a stand-by period. He claimed that these periods should thus be considered ‘working time’ and remunerated accordingly.
The Supreme Court of Slovenia decided to refer a number of questions to the ECJ for a preliminary ruling.
The ECJ ruled that periods of stand-by time where a worker is not carrying out any actual work and is not required to remain at the workplace, may in certain circumstances amount to ‘working time.’ The circumstances are when the constraints imposed upon the worker during those periods objectively and very significantly affect the worker’s ability to manage their free time and devote it to their own interests.
In making this assessment, the organisational difficulties that a worker may experience during stand-by time which are a result of the free choice of the worker or natural factors, are not in themselves relevant. Such an organisational difficulty would be the fact that there are limited opportunities to pursue leisure activities in the vicinity of the workplace; or, that there is a substantial distance between the worker’s place of work and his freely chosen place of residence.
It is only the constraints imposed upon the worker either by the law of their state, by the employer or by a collective agreement, which may be taken into consideration. In this case, the employer’s requirements that the worker had to be contactable while on standby-by and had to return to the workplace within one hour, when required, could therefore amount to such constraints. It will now be for the Supreme Court of Slovenia to decide whether any such constraint operated ‘objectively and very significantly’ so as to affect the claimant’s ability to manage his free time.
This decision serves to preserve previous caselaw of the ECJ; and, as a reminder to employers in EU member states whose workers are on stand-by or ‘on-call,’ but who do not necessarily need to remain at the workplace during that period – those periods may nevertheless amount to ‘working time’ which will require to be remunerated accordingly, depending on the level and nature of the restrictions that the worker is subjected to.
This ruling may potentially be considered and/or relied upon in UK courts and tribunals following Brexit as, although EU law no longer binds the UK, the European Union (Withdrawal) Act 2018 makes provision for UK courts and tribunals to have regard to caselaw of the ECJ to the extent that it may be relevant. In this regard, it may be noted that the Working Time Regulations, which is the applicable law in the UK, was originally put in place to implement the EU’s Working Time Directive, and it is that Directive on which this case is based.
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