Walsh v Kerry County Council [2023] IEHC 719 concerned a recent appeal on a point of law from…

Walsh v Kerry County Council [2023] IEHC 719 concerned a recent appeal on a point of law from a determination of the Labour Court. The issue before the High Court was whether or not the Labour Court erred in finding that a retained firefighter was not “working” during the periods he was on standby and awaiting a call-in.

Facts: The Appellant, Mr Walsh, is a retained firefighter, based at Ballybunion Fire Station, who has been employed on a part-time basis at the station since 2008. The Appellant is required to be available on a 24-hour daily basis excluding periods of approved leave, and to be available at all times generally for call outs. He is also  required to normally reside and work within a “reasonable distance” of the fire station. The Appellant is required to be released from his normal employment on occasions that attendance at fires demands such release. The Appellant is also subject to a minimum requirement of 75% of attendance at alerts. He had a ten-minute response time to an alert. The Appellant maintained that his standby/ on-call periods constituted working time. While the Respondent, Kerry County Council, argued that on-call periods do not constitute working time.

In its decision, the Labour Court referred to the definition of working time set out in Article 2 of the Working Time Directive 2003/99 and in section 2(1) of the Organisation of Working Time Act 1997 (the “1997 Act”). The Labour Court also considered extensively the decisions of the Court of Justice of the European Union (“CJEU”) in Vielle de Nivelles v. Matzak (Case C-518/15); RJ v. Stadt Offenbach (Case C-580/19) and MG v. Dublin City Council(Case C-214/20). Referring to the tests set out in the case law as to when time may be regarded as “working time”, and applying same to the facts of the case before it, the Labour Court concluded that:

“Applying those considerations to the facts of the case before the court, the court finds that the complainant is not obliged to participate in the entirety of the interventions and that there is a 75% minimum requirement attendance in place. The constraints that are placed on the complainant do not ‘place him under major constraints and have a very significant impact on the management of his time’ and that he is able to pursue other activities for a significant portion of his standby periods, including running his own business. This finding was supported by the complainant’s evidence that his [sic] is actively involved in his own business and the respondent’s uncontested submission that on average the complainant is obliged to attend 84 hours per annum, averaging 1.7 hours per week. Taking all of the above into consideration, the court determines that the time spent on standby by the complainant is not working time for the purpose of the Directive and/or the Organisation of Working Time Act 1997 and that no breach of the Act occurred during the cognisable period.”

The Labour Court concluded that the time spent on call by Mr Walsh did not qualify as working time. For that reason, it found that the issue of exemptions from the maximum working week, and weekly and daily breaks did not arise.

Counsel on behalf of the Appellant submitted to the High Court that the Labour Court had strictly followed the decision in MG v. Dublin City Council  and had failed to have proper regard to all the circumstances of the case and, in particular, the constraints that existed; the requirement to remain within ten minutes response time form the fire station; being on call 24/7; and the fact that the Appellant’s attendance rate exceeded the minimum 75% attendance. It was submitted that the Labour Court failed to fully take into account the overall impact of the restrictions on the Appellant, and that the Appellant satisfied the statutory definition of working time when on call.

It was submitted on of behalf the Respondent that it was clear from a reading of the decision of the Labour Cout that it had had regard to all relevant factors in carrying out an assessment of whether the cumulative restraints, objectively and significantly interfered with the Appellant’s capacity to manage his time while on standby. It was also submitted that the Appellant accepted that he was “actively involved” in the running of his business as a Bed and Breakfast owner and organiser of golf tours.

Decision: Mr Justice Barr in the High Court set out the definitions of working time:

Article 2 of Directive 2003/88/EC (“the Working Time Directive”) defines working time as:

“any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice.”

Section 2 of the 1997 Act provides as follows:

 “‘Working time’ means any time that the employee is – (a) at his or her place of work or at his or her employer’s disposal, and (b) carrying out on or performing the activities or duties of his or her work, and (work) shall be construed accordingly”.

The term “rest period” is defined in the Directive (and in identical terms in the 1997 Act) as meaning “any period which is not working time”.

Mr Justice Barr  addressed the Vielle de Nivelles v. Matzak case which considered the significance of the constraint, which provided that an employee had to remain at a place designated by his employer, during his period of standby. The CJEU contrasted a standby situation where such restraint was in place with a standby situation where there was no such constraint.

“59. Furthermore, it is apparent from the case-law of the Court that the determining factor for the classification of ‘working time’, within the meaning of Directive 2003/88, is the requirement that the worker be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. In fact, those obligations, which make it impossible for the workers concerned to choose the place where they stay during stand-by periods, must be regarded as coming within the ambit of the performance of their duties….

  1. Finally, it must be observed that the situation is different where the worker performs a stand-by duty according to a stand-by system which requires that the worker be permanently accessible without being required to be present at the place of work. Even if he is at the disposal of his employer, since it must be possible to contact him, in that situation the worker may manage his time with fewer constraints and pursue his own interests. In those circumstances, only time linked to the actual provision of services must be regarded as ‘working time’, within the meaning of Directive 2003/88…”

Mr Justice Barr also referred to the recent MG v. Dublin City Council judgment, in which the CJEU summarised the relevant principles in the following test at paragraph 42:

“It is for the referring court to assess, in the light of all the circumstances of the case and relying on the information set out in paragraphs 38 to 41 of the present judgment, whether, during his periods of stand-by time according to a stand-by system, MG is subject to constraints of such intensity such as to constrain, objectively and very significantly, the ability that he has freely to manage, during those periods, the time during which his professional services as a retained firefighter are not required.”

The Court was satisfied that the Labour Court had regard to all relevant factors said to constitute constraints on the Appellant’s ability to carry out activities while on call, and correctly applied the test set down by the CJEU in the MG decision.

The Court found that it was clear from the decision of the Labour Court that it had regard to all of the relevant matters:

    • the fact that the Appellant had ten minutes to get to the fire station
    • that the Appellant had to have permission to leave the Ballybunion area, which permission had been refused on one occasion when he wanted to attend a golf tournament, albeit he had been able to attend on another day in the same week, and on other occasions when he had been asked by the station officer to defer his departure by thirty minutes
    • that he had to carry an alerter, which had a transmission radius of 15km from the fire station
    • that when asked in cross-examination how many hours he spent working in his business as a bed and breakfast owner and as an organiser of golf tours, the appellant was unable to give an exact number of hours spent on these activities, but had said that he was “actively involved in running his business”
    • that he was aware that he would only face possible loss of retainer fee and/or disciplinary action, if he failed to respond to at least 75% of alerts
    • that the frequency of alerts in the station for the past six years was 52 a year, with the average duration of a call being 2 hours and 20 minutes and that the Appellant was on average obliged to attend 84 hours per annum at fire incidents, averaging 1.7 hours per week.

Barr J found that the Labour Court was entitled to reach the conclusion that the constraints on the Appellant were not such as to “objectively and very significantly” affect the Appellant’s ability to freely manage his time in pursuing his business and social interests during periods of standby.

Takeaway for Employers: In determining whether or not the time that an employee spends on standby and on-call is working time, an employer must consider the constraints on the employee’s time and whether or not they are such as to “objectively and very significantly” affect their ability to freely manage their time. If they do have that effect then that time will be considered to be working time and employers need to treat it as such. Employers who utilise standby or on-call arrangements should review such arrangements and the restraints that they place on employees during periods of standby or on-call to ensure that they are correctly treating such periods as working time or otherwise.

Link Walsh v Kerry County Council

Authors – Ethna Dillon, Jenny Wakely and Anne O’Connell

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