Testing time

Christopher Mordue examines a crucial European judgement on working time and
its implications for UK employers

The Working Time regulations have not had the devastating impact employers
feared when they were introduced two years ago. This is largely due to the many
flexibilities available. It is no coincidence that the paid annual leave
provisions, which have been the source of most employment tribunal disputes,
are some of the few rights that cannot be modified or excluded by agreement.

But this relative tranquillity recently faced a major test in the SIMAP
case, in which the European Court of Justice made its first decision on the
interpretation of the Working Time directive.

The Spanish courts made a reference to the ECJ in the course of proceedings
brought by medical staff at health centres in Valencia. The doctors concerned
worked a standard 40 hours per week, with a period of 17 hours on-call every 11
days. The major issue was the status of on-call hours. Were they working time?
Were they overtime? Could they qualify a worker as a night worker?

However, the case had much wider significance. For the first time, the ECJ
was asked to rule on the interpretation of "working time" itself –
the most fundamental concept in the directive and regulations, underpinning all
of the rights and limits on working hours.

Both the directive and the regulations define "working time" as
time when the worker is "working, at his employer’s disposal in carrying
out his activities and duties". The assumption in the UK, backed by
government guidance, is that all three parts of this definition must be satisfied.

But this interpretation was thrown into doubt last December when Advocate
General Saggio, in his opinion on the SIMAP case, proposed it was sufficient if
only one element of the definition was satisfied.

If this had been followed by the ECJ, the whole scope of "working
time" would have been much wider, having a substantial impact on the UK

Fortunately, the ECJ proved far more conservative. Its conclusions clearly
uphold the UK’s approach. It did not, however, provide any clarity on how the
working time definition is to be interpreted. But it did suggest a worker’s
freedom to carry out non-work related activities is a guide to deciding whether
time is "working time".

For public-sector employers, the SIMAP case is also important because it
confirms that the average weekly working time limit of the directive is
directly enforceable by workers. In 1999, the Government amended the
Regulations to provide that so called "voluntary overtime" does not
count towards the weekly working time limit. These provisions have no
counterpart in the directive and therefore public sector workers may seek to
overcome the amendment by relying directly on the directive. The decision may
also lead to other provisions of the directive also being held to have "direct
effect". n

Some of the issues clarified by the SIMAP decision

When will on-call hours count as working time?

This depends on whether the worker is on-call at his place of work. If so,
all three elements of the working time definition are satisfied and the on-call
hours count in full. However, if the on-call hours are spent away from the
employer’s premises, and the worker is simply required to be contactable, the
definition is not met. If the worker is called upon, the "working time
clock" will start to run, but only time linked to the actual provision of
services will count.

Can on-call workers count as shift workers?

They can, if their pattern of work involves succeeding other workers at the
same work station. This is of assistance for employers who use on-call working
arrangements since, in the case of shift workers, the entitlement to daily and
weekly rest periods do not necessarily apply, for example, where the worker
changes shift and cannot take the rest period between the end of one shift and
the start of another.

Can on-call workers qualify as night workers?

On-call hours spent during night time can qualify a worker as a night worker
to the extent that they constitute working time. This adds little to the
Directive or the Regulations, which provide that a night worker is one who, as
a normal course, works at least three hours of daily working time during night
time. Whether on-call working will amount to night working "as a normal
course" will depend on the working pattern involved. What the ECJ failed
to address was whether on-call hours count as "normal hours" or
overtime. If overtime, they do not count towards the limit on the normal hours
of night workers.

Christopher Mordue is an associate at Pinsent Curtis

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