A court ruling where a volunteer firefighter’s time on standby was declared as ‘working time’ is set to spark new heat for employers, according to a leading Tayside Employment Law expert, Miller Hendry.
A firefighter from Belgium has been told his standby time is classed as working time by The Court of Justice of the European Union.
Alan Matthew, an Employment Law solicitor from Miller Hendry, which has offices in Dundee, Perth and Crieff, is urging businesses not to ignore this case which “adds to the already complex minefield for compliance with on-call workers.”
Under the Working Time Directive, ‘working time’ refers to “any period during which the worker is working at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.”
The firefighter in question was required to be at the fire station no more than 8 minutes so he was required to be at home at all times, this had an effect on personal life and the Court said that this obligation meant that he was limited in how he could pursue his personal and social life. This contrasted with a worker who may be asked simply to be contactable.
Alan Matthew commented: “This latest judgement was in Belgium, but as we are still part of the EU, it is just as important here. Whether or not a worker on standby is ‘working’ will depend on the circumstances of each case, but the fact that the issue is complicated with grey areas does not mean that businesses can ignore it – ignorance of the law has never been a valid defence. Employers may have to pay substantial sums for back-pay that could be due.
“For any situation that seems unclear, it’s worth getting some independent advice. An easily made change to the way that on-call systems are operated might clarify things and take an employee out of a potential ‘working’ situation.”
The judgement follows hard on the heels of last year’s hearing by the Employment Appeal Tribunal of three cases –
Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake – which said that businesses must conduct a ‘multifactorial evaluation’ as there was no clear, hard and fast way to distinguish between on-call workers who are considered to be ‘at work’ and those who are not, the law firm said.
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