Firefighter ruling sparks new heat for employers

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.

The Court of Justice of the European Union(CJEU) ruled that a Belgian volunteer firefighter, Rudy Matzak, is a ‘worker’ and, under the Working Time Directive, his time on standby is now ‘working time’.

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.”

When he was on call, Mr Matzak had to be at home and able to fulfil the requirement of an eight minute response time to reach the fire station, 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.

The knock-on effect for employers of standby time being deemed to be working time is that it has to be taken into account when complying with rest periods, working hours and the National Minimum Wage.

Mr Matthew said: “This latest judgment 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 Tribunalof three cases - Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltdand 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.

In any situation where the on-call claim is found to be ‘working’ time the National Minimum Wage Regulations (NMW) will apply. New rates for the National Minimum Wage come into force from April 2018, applicable to the various rates, including the National Living Wage for eligible workers aged over 25, and other age-related rates.