Instructions when off work
Companies which require flexible work schedules frequently coordinate working times for the following day with employees via text message or messenger service, for example. As a result, there is sometimes no alternative for employees than having to read messages outside of working hours.
But are employees actually obligated to read these messages?
From a legal perspective, the matter depends on whether opening the message can be classified as work activity or not. The Schleswig-Holstein State Labor Court ruled that opening and reading a text message during free time represents a work activity. However, employees have the right to be unavailable during their free time and, therefore, are not required to open messages when off work.
If the employee does not open a message and is late for work as a result, this cannot be considered a breach of the employee’s work duties and issuing a warning would then be unlawful.
SMS notifications about starting times when off work
The Federal Labor Court dealt with a similar case. An emergency paramedic sued for the removal of a warning letter from his personnel file, among other things. The warning was issued because the employee failed to work a stand-in shift on two working days in 2021 as instructed, although the employer had informed him of the shift start and location via text message the previous day. However, the employee had ignored the messages on his day off, even though a company agreement stated that the start of stand-in shifts would be announced by 8 p.m. on the day before at the latest.
The emergency paramedic was issued a warning the second time he failed to show up for a shift as instructed.
Federal Labor Court: Reading text messages is not a work activity
The Federal Labor Court ruled that the warning was legally permissible. This is because his employer’s instruction via text message to start work at 6:00 a.m. was binding. The employee should have read the text message notifying him about the when his shift started, even on his day off.
Reading the message does not equate to a work activity and is not working time. Rather, it is an ancillary obligation of the employee pursuant to his employment contract. Moreover, the obligation to read the message even when off work also arose from the company agreement.
Ultimately, the employee should have checked his messages on the evening before given that he was aware that he was on standby.
The Federal Labor Court did not regard this as contradicting the Working Hours Act: Reading a text message with information about the start of work is not working time as defined by occupational health and safety law.
What does this ruling mean for employers?
Companies stand to benefit from this decision, especially those which have to schedule work at short notice. Employees do not have an absolute right to be unavailable during their free time.
Yet at the same time, the verdict should not be generalized. This ruling does not create a general obligation for employees to remain available for employers even when off work. Furthermore, the case in question involved a company agreement which explicitly stated that work could be assigned at short notice.
What can we do for you?
Do you have questions about this issue? Would you like to have a suitable company agreement drawn up? Do not hesitate to contact us!
Summary of the key facts:
- Reading SMS/messenger messages with information about when to start work during free time is not a work activity or working time.
- Employees may be obliged to read text messages from their employer during their free time.
- Corresponding company agreements create clarity and legal certainty.
