The recent decision of the European Court of Justice in SIMAP v Conselleria de Sanidad y Consumo de la Generalidad Valenciana, 2000, IRLR 845 has at least clarified one controversial issue. This was the question of when time spent "on call" can be regarded as "working time" so as to be subject to the limits laid down in the directive and regulations.
Working time is defined as "any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties…"
The guidance originally published by the Department of Trade and Industry stated that time when a worker was on call, but otherwise free to carry out his or her own activities, did not count as working time. This was on the basis that all three elements of the definition must be satisfied – the worker must be working, at the employer’s disposal and carrying out its activity or duties.
The decision in SIMAP has shown that this view was an over-simplification. The case concerned the working hours of doctors in Spain.
In essence, the ECJ ruled that time spent on call by the doctors must be regarded as ‘working time’ where their attendance at the health centre was required. The fact that they are obliged to be present and available at the workplace with a view to providing their professional services is sufficient.
The court contrasted the position where doctors are on call merely by being contactable without having to be physically present. In this situation, although the doctors are in a sense at the employer’s disposal, the ECJ considered that they could "manage their time with fewer constraints and pursue their own interests". Accordingly, the ECJ concluded that only time linked to the actual provision of healthcare services should be regarded as working time.
In light of SIMAP, the key distinction is therefore between on-call time when a worker has to wait on site, and on-call time when the worker has freedom to pursue leisure activities away from the workplace.
Confusion over the scope of the working time definition has persuaded many employers to seek agreement from workers opting out of the 48-hour maximum working week. In SIMAP, the ECJ confirmed that consent to an opt-out must be given by workers individually and not by trade union representatives in a collective agreement.
There was further encouragement for individual opt-out agreements a year ago when the record-keeping requirements for employers were relaxed by the Working Time regulations 1999.
However, the days of the individual opt-out may well be numbered. The Working Time di- rective provides for a mandatory review of the provisions allowing opt-out agreements by November 2003, and it is likely that the European Commission will press hard for them to be repealed. Employers who currently rely on individual opt-outs would be advised to plan ahead for this eventuality.
· Time spent on call counts as "working time" if an employee is required to be present at the workplace – not when he or she is merely contactable.
· Workers can agree to opt out of the 48-hour weekly working time limit, but consent must be given on an individual basis.
· Employers should be aware that the provisions allowing individual opt-out agreements are likely to be abolished in about three years’ time.
By Richard Lister, a lawyer in Lewis Silkin’s employment department