On-call duty is widespread in many professions. The question as to whether on-call duty counts as working time arises regularly. This question has now been brought before the CJEUCourt of Justice of the European Union (CJEU) in Luxembourg once again.
The CJEU held that on-call duty is only working time to the full extent if it significantly prevents the employeefrom planning his or her free time (Ref. C-580/19 and C-344/19). If there are no such restrictions on the use of free time, only those hours during which work was actually carried out are to be counted as working time. According to the CJEU, however, the decision is to be made by the national courts in individual cases.
On-Call Duty with the Fire Department
The first case which had to be decided was about a firefighter from Offenbach (Ref.: C-580/19). Although he was allowed to spend his on-call duty outside the station, he was obliged to remain within 20 minutes’ reach of the city borders in his service vehicle, on standby and in full working clothes.
Remote Workplace in the Mountains
The second case was about a technician from Slovenia (Ref. C-344/19). It was his job to ensure the operation of a television broadcasting station in the Slovenian mountains for several days in a row. Six hours of on-call duty were added to his daily working hours. During this time, he had to be able to reach the broadcasting station within an hour if necessary. In fact, this was only possible if he spent his on-call time in his employer’s accommodation in the mountains. However, there were no significant leisure facilities available.
Due to the restrictions associated with the on-call duty, both employees demanded that it be fully counted and paid as working time.
Working Time or Resting Time
First of all, the CJEU clarified that the term “on-call duty” describes periods of on-call time during which the employee does not need to remain at his workplace. The Court further clarified that the term “working time” is defined at the level of the European Working Time Directive as any period during which an employee is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national law and/or practice. The term “resting time”, on the other hand, describes any period of time outside of working hours. Thus, the CJEU once again clarified that an employee’s on-call time always has to be classified either as working time or as resting time.
Significant Limitations on the Organization of Free Time
The CJEU clarified that on-call time, including on-call duty, is to be counted fully as working time if the employee cannot plan this time and devote it to his or her interests. In this context, it is important that this free time is objectively and quite significantly restricted even when his or her services are not required during this time. However, only such restrictions that are imposed on the employee by the respective national jurisdiction, the employer or by collective agreement could be taken into account.
If there are no such significant restrictions, only the time spent on work actually performed is to be considered as working time during the on-call time. Organizational difficulties are insignificant as well.
Furthermore, not only the restrictions but also the facilities provided have to be taken into account when assessing whether on-call time is to be deemed as working time, according to the CJEU. In this context, for example, it is important whether a company vehicle is made available, with which special privileges and rights of way in the road traffic regulations can be used, or whether there is a possibility of use without a change in location.
All in all, an overall evaluation of the individual case is to be made by the national courts.
Remuneration for On-Call Time
Regarding the remuneration of on-call time, the Court of Justice of the European Union found that time during which work is actually performed can be remunerated differently from time during which no work is actually performed. The remuneration of on-call time is not governed by Directive 2003/88 and can also be regulated by national law or contractual agreements.
Even after the CJEU’s decision, national courts will have to evaluate whether on-call duty is to be classified as working time in individual cases. In this context, the courts will have to consider, among other things, the specific period of time imposed on employees to start their work. It remains to be seen length of time will prevail here in the German courts.