The European Court of Justice’s first ruling on the Working Time directive has clarified the status of time spent on call. It is now over two years since the Working Time regulations 1998 came into force, implementing the EC Working Time directive. According to recent statistics, the regulations have generated over 3,000 employment tribunal applications during that period. However, very few cases have yet reached the appeal courts, and a number of key issues of interpretation are still to be resolved.
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