A period of on-call duty constitutes working time in its entirety only when the constraints imposed on the worker significantly affect his or her ability to manage leisure time during that period, the European Court of Justice (CJEU) ruled on Tuesday 9 March.
The judgments it delivered concern two employee cases before Slovenian and German courts which were referred to the CJEU for preliminary rulings.
The first (C-344/19) concerns a specialised technician who was responsible for the operation, for several consecutive days, of television transmission centres located in the mountains in Slovenia.
The second (C-580/19) concerns a civil servant working as a firefighter in Offenbach am Main, Germany, who, during his on-call periods, had to be reachable and, in the event of an alert, be able to arrive at anywhere within the city within 20 minutes.
These two employees felt that, because of the restrictions involved, their periods of on-call duty should be recognised in their entirety as working time and be paid accordingly, regardless of whether or not they had performed any actual work during these periods.
The Court clarifies, as a preliminary point, that a period of on-call duty must automatically be classified as “working time” under Directive 2003/88 where the employee is obliged, during that period, to remain at his place of work, separate from his home, and to remain there at the disposal of his employer.
It considers that periods of on-call duty, including being on stand-by, also fall, in their entirety, within the notion of “working time” when the constraints imposed on the worker objectively and very significantly affect his or her ability to freely manage the time during which his or her professional services are not required and to devote himself or herself to his or her own interests.
Conversely, in the absence of such constraints, only the time related to the performance of work which is, where applicable, actually carried out during such periods is to be considered as “working time”.
The Court states that, in order to assess whether a period of on-call time constitutes “working time”, only constraints imposed on the worker, whether by national regulations, a collective agreement or by his employer, may be taken into consideration.
But, the Court points out, the organisational difficulties that a period of on-call duty may create for the worker and which are the consequence of natural elements or of the worker’s free choice are not relevant.
Moreover, it is for the national courts to make an overall assessment of all the circumstances in order to ascertain whether a period of standing by must be classified as “working time”, since such classification is not automatic in the absence of an obligation to remain in the workplace, the Court points out.
See the judgment of the Court: http://bit.ly/3rIkX4p (Original version in French by Aminata Niang)