EU Working time : whose time is it anyway?

Two recent decisions under the EU Working Time Directive (WTD) are of interest. The first is a UK Employment Appeal Tribunal (EAT) decision on holiday pay and the second is an influential opinion of the Advocate General (AG) of the European Court of Justice, which the Court usually follows, on what counts as ‘working time’.

Voluntary overtime, standby allowances and callout charges

The UK EAT has just ruled that, under the EU WTD, voluntary overtime pay, out of hours standby payments and call-out payments should be included in the calculation of the 4 weeks statutory holiday pay, provided they are sufficiently regular or recurring.

This is the case even if there is no obligation on the employer to provide, or the employee to do, the overtime or join the on-call rota.

The reason is that, under the WTD, holiday pay must correspond to ‘normal remuneration’. The view of what counts as ‘normal remuneration’ has evolved in the UK courts and may, even now, not have settled down. In 2004, overtime was only included in holiday pay if it was ‘guaranteed’ and ‘compulsory’. In 2015, it was decided that overtime that was compulsory but not guaranteed should be included in holiday pay.

And now, following this new decision, overtime that is neither guaranteed nor compulsory is to be included in calculating statutory holiday pay, as should the payments for time spent on voluntary on-call rotas and for voluntary call outs.

It has always been and remains the case that the work involved must be ‘sufficiently regular’. One-off or occasional extra work would not count towards holiday pay.

Does standby duty count as ‘working time’?

If you are on standby duty, say at home, are you working for the purposes of the EU WTD?

This case involved a Belgian firefighter required to be on call in the evenings and at weekends, one week in four. While on-call he had to remain contactable and, if required, be at the fire station within 8 minutes. Time on call was unpaid. The firefighter claimed his time on call was working time.

The AG said the being on call does not automatically amount to ‘working time’. It depends more on the potential quality of the time spent while on call and the extent to which that quality is undermined by the restrictions imposed by the employer. The required proximity of the employee to the workplace is not necessarily the deciding factor. Equal emphasis must be given to other factors affecting the actual quality of the time spent on call.

In the AG’s opinion it was for the Member States, in each case, to decide whether the quality of time spent on call has been undermined by employer restrictions to such an extent that it should count as ‘working time’.