High Court: Firefighter not ‘working’ whilst on standby

High Court: Firefighter not 'working' whilst on standby

The High Court has refused the appeal of a firefighter from a Labour Court decision upholding the adjudicating officer’s decision that the firefighter was not working during his ‘on standby’ periods.

Delivering judgment for the High Court, Mr Justice Anthony Barr found that the Labour Court had regard to all factors alleged to have ‘constrained’ the appellant during his standby periods, and had correctly decided that “the constraints on the appellant were not such as to ‘objectively and very significantly’ affect the appellant freely managing his time and pursuing his business and social interests during his periods on standby”.


The appellant was employed as a firefighter part-time at a fire station in Kerry. The terms and conditions of his employment were set out in a contract which provided that as well as a retainer fee to cover his being on standby 24/7, he would receive an additional payment in respect of periods when he was required to answer an alert.

In accordance with the contract, the appellant would also receive an attendance fee when undergoing training and maintenance courses concerning his equipment. The contract further required that the appellant was required to be available at all times, save for periods when on approved leave, and to reside and work within “a reasonable distance” of the fire station. Any change taking him an unreasonable distance from the station would result in termination of his service.

A further composite agreement between certain trade unions and various local authorities provided that the attendance criteria for fire drills would be 85 per cent, and that was the basis upon which the retainer would be paid. The composite agreement also stipulated that on-call firefighters responding within the “turnout time limit” would receive full pay in all circumstances.

The terms and conditions were further supplemented by a letter which stipulated that personnel contact their station officer in advance should circumstances arise in which they may be unable to attend at any time, and further that a minimum requirement of 75 per cent attendance at alerts was appropriate. The letter concluded that if attendance at drills or alerts was unsatisfactory, the firefighter would be given an opportunity to address same.

A question arose as to whether the appellant was ‘working’ for his employer during the periods that he was on standby and awaiting a call for a fire or other alert. The Labour Court noted that whilst the appellant would not be disciplined if he attended a minimum of 75 per cent of alerts, and had to ask permission from his station officer to leave the Ballybunion area in case other staff were not available. The appellant complained that given the level of staffing at the station, he was required to attend at nearly every callout which constrained the carrying on of his B&B business, having only ten minutes to get to the fire station when called.

The Labour Court referred to the definitions of ‘working time’ as set out in the Working Time Directive 2003/99 and in the Organisation of Working Time Act 1997, and to the authorities of 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).

The Labour Court concluded that no breach under the Directive or the 1997 Act had occurred as the appellant was not obliged to partake in every callout, and so was not working during the standby periods as he was not under “major constraints” with a “very significant impact on the management of his time” and was “able to pursue other activities for a significant portion of his standby time…”

Having found that the time spent on call did not qualify as working time, the Labour Court considered that issues of exemptions from the maximum working week and breaks did not arise in the appeal before it, and it dismissed the appeal.

The appellant appealed on a point of law to the High Court.

The High Court

Mr Justice Barr noted that in essence, the appellant’s argument was that the Labour Court failed to take account of the overall impact of the restrictions imposed on the appellant by virtue of his role as a firefighter.

The court began its analysis by setting out the definitions in the Directive and the 1997 Act, noting that whether a working is engaged in ‘working time’ or in a ‘rest period’ is “effectively a binary choice… There is no halfway house, it is either one thing or the other.”

Noting the emphasis placed by the CJEU in Matzak on the significance of constraints which required an employee to remain at a place designated by its employer, Mr Justice Barr considered that in RJ v Stadt Offenbach the test for whether a person was ‘working’ on standby “effectively involved constraints of such a level that they ‘objectively and significantly’, affected the possibility of the worker freely to manage the time during which his or her professional services are not required and to pursue his or her own interests”.

Recognising that findings of primary fact could only be overturned on an appeal on a point of law if there is no evidence to support them, the court stated that it was satisfied that the findings of fact and inferences drawn by the Labour Court flowed from facts either expressly agreed between the parties or not seriously contradicted before it.

The appellant contended that the Labour Court erred in holding that Matzak was not persuasive as it was predicated primarily on a requirement in that case for the firefighter to remain at home during the periods when he was on standby. Mr Justice Barr found “no substance” in that argument, finding it “clear from the terms of the reference made by the national court in that case and from the terms of the judgment of the CJEU, that the national court had asked for a decision on the basis that Mr Matzak was required to remain at his home during his periods on standby”.

Having found that the Labour Court was entitled to hold that Matzak involved considerably more restrictive constraints and so did not bind it, the court turned to the appellant’s main argument, that the Labour Court focused restrictively on the decision in MG and failed to regard the full range of constraints that existed in the case before it.

Mr Justice Barr was not convinced, considering it obvious that the Labour Court accounted for all relevant facts in the case, and concluding that the Labour Court applied the correct test arising from the caselaw and culminating in the MG decision.

The court considered itself “satisfied 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 freely managing his time and pursuing his business and social interests during his periods on standby”.


Accordingly, the court refused to set aside the decision of the Labour Court and dismissed the appeal.

Walsh v Kerry County Council [2023] IEHC 706

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