03-26-2021  | Update Employment Law March 2021

Classification of on-call duty as working time




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Comment on the judgments of the ECJ of 9.3.2021, C-344/19 and of 9.3.2021, C-580/19

With the recent rulings in cases C-344/19 and C-580/19, the ECJ continued its case law on the specification of working time. In its decision of 21.02.2018, C-518/15 (Matzak), the ECJ had already ruled on the classification of on-call time as working time, if the employee could stay at home but had to be constantly ready to comply with the employer's request to work within eight minutes. In the present cases C-344/19 and C-580/19, the ECJ dealt with the question of whether the on-call duty of a technician or a fire department’s head of operations could be classified as working time within the meaning of EU Directive 2003/88 under certain circumstances. 

In the cases, the technician, specialized in transmitting systems, could stay in the employer's recreation rooms as well as pursue leisure activities at another location during his on-call duty. However, he had to be reachable by telephone at all times and to be able to return to work within one hour if necessary. In a similar case, the head of operations of the fire department had to be reachable by telephone at all times during his on-call duty. In addition, he had to carry his work clothes and the emergency vehicle with him and to be able to reach the city limits at any time within 20 minutes (if necessary, using special rights according to the Road Traffic Regulations).  

During on-call time, the employee has to keep himself available at all times - at the employer's premises regularly- in order to be able to perform his work at any time upon request. During on-call duty, he may stay at a place of his choice (e.g. at home) and has to go to the place designated by the employer within a certain time when requested to work in order to perform his work there. In both cases the employee may engage in non-work activities during the time in which he is only required to "stand by". However, only on-call time is generally classified as working time within the meaning of the German Working Time Act (ArbZG), whereas in the case of on-call duty only the work performed during the actual work assignment was considered as working time until now.  

As of now, the ECJ classifies also on-call duty as working time within the meaning of EU Directive 2003/88. The requirement is that during the time, in which the employee is only required to "stand by" without work performance, he is imposed to such significant restrictions that, objectively speaking, make it impossible for him to freely organize this time and devote it to his own interests. Conversely, this means that on-call duty, which does not objectively affect the employee's free time to a significant extent, is not to be classified as working time.  

Therefore, the intensity of the restrictions imposed on the employee during his on-call duty by law, collective agreement, employment contract, work regulations or on-call duty schedule must be considered in the context of a case-by-case assessment. Mere organizational obstacles on the part of the employee resulting from natural circumstances or his free decision - such as the huge distance between the place of residence and the workplace to be reached or the impossibility of leaving this place at short notice resulting solely from the remoteness of the place of residence - are not to be taken into account. Decisive criteria are the shortness of the period within which the employee has to start his professional activity at the place determined by the employer, the average frequency and duration of the actual work assignments and the extent of the impact of the reaction period on the employee's free time and ability to plan his free time. However, not only restrictions but also facilitations granted, such as a company car made available, are to be included in the weighing of individual cases.  

The latest ECJ rulings further contribute to clarifying the term "working time". In doing so, they allow national courts considerable leeway in their assessment of individual cases. In the context of labor law compliance, the two decisions will have a direct impact with regard to the recording of the maximum permissible daily or weekly working time and the mandatory minimum rest period. However, the ECJ clarified that the classification of on-call duty as working time has no impact on the remuneration of employees. This remains subject to national regulations or provisions in collective agreements or employment contracts. Therefore, it remains permissible to pay differently for periods of on-call duty which, according to the ECJ, are to be classified as working time but during which no work is actually performed. For this reason, the financial burden for the employer is likely to be lower than expected.

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