Relevant factors when judging whether stand-by time is working time (MG v Dublin City Council)

When considering whether or not stand-by or on call time is to be regarded as ‘working time’ under the Working Time Directive for the purpose of the maximum working week, rest breaks and rest periods, relevant factors will include: 1) whether the worker has to be in a specific place during their periods of stand-by time, 2) whether they are allowed to carry out another professional activity during stand-by time and, if so, whether they can do so effectively (as a result of obligations arising from their employment contract, from collective agreements and from legislation) for a significant portion of stand-by time, 3) whether they can choose not to work when called upon by their employer (and how frequently they can choose not to do so), 4) if they decide to work, the time limit for that worker to return to work, and 5) the average frequency of the activities that the worker is actually called upon by their employer to undertake, according to the Court of Justice.

MG v Dublin City Council Case C-214-20

What are the practical implications of this judgment?

It should be noted that this judgment was published on 11 November 2021 and therefore due to Brexit, and in particular section 6 of the European Union (Withdrawal) Act 2018 (EU(W)A 2018), as it was made after IP completion day, it is not binding on UK courts and tribunals. However, UK courts and tribunals may ‘have regard to’ this judgment so far as they consider it to be relevant to any matter they are considering (but not to such an extent that they would consider themselves bound by it).

This judgment relates to an Irish case and deals with Directive 2003/88/EC, the Working Time Directive but UK courts and tribunals may (or may not) choose to have regard to it when interpreting the Working Time Regulations 1998 (WTR 1998), SI 1998/1833 (which implemented the Working Time Directive into UK law). With that proviso, parties involved in cases dealing with stand-by time should note the factors that this judgment makes clear are relevant when considering whether or not stand-by or on call time is to be regarded as ‘working time’.

Case details

• Court: Court of Justice
• Judges: E Regan (President of the Chamber) K Lenaerts (President of the Court, acting as judge of the Fifth Chamber), C Lycourgos (Rapporteur, President of the Fourth Chamber), I Jarukaitis and M Ilešič
• Date of judgment: 11 November 2021

Pro Employment Law

Formed in 2017, following significant legislative changes designed to increase competition within the legal services marketplace, Pro Employment Law is a progressive set of barristers’ chambers, consisting only of experienced employment law barristers, offering a full range of specialist advisory, case management, and advocacy services directly to the public through the Public Access scheme. We supply our legal services exclusively in the area of Employment Law to clients located across England & Wales. All of the legal services we supply are covered by professional indemnity insurance with Bar Mutual.