Do standby periods count as working time?
Two recent European Court of Justice (ECJ) decisions made findings about whether standby periods count as working time. Although ECJ rulings are no longer binding on UK courts and tribunals, they may still take them into account and therefore employers need to be mindful of these findings.
In both cases, the ECJ held that a worker on standby may be considered working where they are required to be contactable and must be able to return to the workplace within a given period. However, in deciding this, there are a number of factors that need to be taken into account:
· Whether the worker is required to be contactable and able to return to site within a specified time.
· The required response time during the standby period (the quicker the response time, the more likely the standby period will be considered as working) and the frequency with which the worker is called upon during standby. In one of the cases, having to be contactable and able to return to site within one hour was not enough.
· Whether the above “objectively and very significantly” affect the worker’s ability to spend time on other interests. However, the fact that there are limited leisure activities available within the immediate vicinity of the workplace should not be taken into account.
The ECJ also found that standby periods which are counted as rest periods but are very long or frequent may constitute a risk to the health or safety of workers. Therefore, employers should make sure all their workers receive sufficient rest periods.
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