Standby duty… always working hours?

On-call duty, standby duty, etc., often give rise to a discussion as to whether or not a certain part of this time can be considered ‘working hours’. After all, this is important when you need to know whether to pay wages. It may also lead to the maximum limits on working time being exceeded, for which overtime and/or compensatory rest may be due. Recently, the Court of Justice provided more clarity on employees in a ‘deserted’ or ‘difficult to reach workplace’. Or how an almost unreachable idyllic Slovenian mountain landscape shapes the case law of the Court of Justice of the European Union.

On-call duty at the workplace is automatically working hours

The ‘sleeping standby duty’, whereby a worker is physically present at the workplace throughout the night, does in principle count as working hours, whether the employee is actually performing work or not. It is essential that the employer can call the employees to work at any time and that they, in turn, are prepared to respond.

These include, for example, hospital staff and firefighters. There are, however, exceptions to this rule in certain sectors.

But what if your employee merely needs to be ‘reachable’?

In the past, the Court of Justice has regularly ruled that when the worker was not required to be physically present, but for example only on call outside the workplace, on-call duty could not be regarded as working hours.

The Court of Justice subsequently qualified this in a precedent judgement and ruled that the time during which an employee was actually forced to stay at home in order to answer calls immediately and then to be present at the workplace within a very short time (e.g. around 8 minutes) should in principle be regarded as working time.

In particular, the degree of freedom the employee had or did not have to enjoy their ‘free time’ during that period must be taken into account.

And what if your employee is restricted by the geographical characteristics of the workplace?

The Court of Justice was now confronted with such a case.

For example, a Slovenian technician must be contactable by telephone and arrive at their workplace within the hour if called upon to do so; they are not obliged to stay at their workplace, but are ‘forced’ to do so in an adjacent house, since the location makes it impossible (or very difficult) for them to return home every day; and this place offers ‘few’ or no opportunities for leisure activities.

Specifically here, the television broadcasting station was in the Slovenian mountains, far from civilisation and solely connected by a cable-lift that only was only activated sporadically; the worker had no vehicle of their own for travel; they could not reach their place of residence in a single day, so it was impossible for them to arrive at their workplace within the hour; and they had no choice but to stay in a house provided by the employer.

Is on-call duty in such an event working hours, or is it not? More specifically, is your employee’s freedom limited to such an extent by the geographical location of their workplace, the lack of sufficient recreational facilities and their own free choice to work there?

Clearly and convincingly, the Court of Justice did not think so.

In assessing whether or not ‘working hours’ are involved, we need only consider the obligations imposed by national regulations, by collective agreement or (in this case) the employer. The employee was not required to remain at the workplace and was perfectly able to plan their times of rest, as they had more than one hour to respond to the calls. In fact, even if they had not been on ‘standby duty’, their geographical location did not allow them to return home every day.

The fact that the workplace was located far from ‘civilisation’ was therefore not unique. When working at sea or on an oil platform, the employee is far from home too.

For the Court, ‘standby duty’ should therefore not be considered working hours in this case.

Moral of the story?

In line with its earlier case law, the Court therefore emphasises that standby duty, during which the employee must be permanently available, can only be fully regarded as ‘working time’ if the obligations imposed on them objectively and significantly limit their ability to use their free time during that shift.

The Court again emphasises the concrete terms for assessing whether or not working hours are involved. In any case, it is clear that organisational problems resulting from natural circumstances, such as the geographical location of the workplace or the lack of sufficient leisure activities and of the worker’s free choice, are not relevant to this assessment.

It is important to take into account the time available for the worker to resume their activities, combined with the average number of interventions to be carried out and their impact on the ability to freely occupy this time and to devote it to their own interests.

The more freedom the worker has, without a fixed location, the less likely their on-call duty will be considered working hours.

Specific questions about the organisation of working hours at your company? Please contact us for tailor-made advice.


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