Global Compliance Desk – Europe

“When Does Stand by Duty Count as Working Time” – Guidelines provided by European Court of Justice

In a judgment dated March 9, 2021, the European Court of Justice has established certain principles in respect of whether the time spent by an employee on standby duty shall be considered as part of the working hours or not. 

Background of the Cases referred to ECJ  

• In the first case, a technician in Slovenia was responsible for ensuring the operation of a Transmission Centre in the mountains and had to be available by phone during standby duty and be able to return to his workplace, if required, within an hour. Owing to the constraint of the nature of the Transmission Centre, he was actually (de facto) forced to stay in a service accommodation provided by his employer during his stand-by duty with minute leisure time.
• In the second case, a Firefighter in Germany had to perform standby duty in addition to his regular hours of work. During such period, he was not in fact required to be present at a specific place indicated by his employer but instead was required to be able to reach, if alerted, the city boundaries within 20 minutes with his uniform and the service vehicle, provided to him by the employer.

National Laws in European Union

Currently, there is no law in place for stand-by duty in both Slovenia and Germany. Comparatively, in other EU countries such as in Austria, the stand by duty is regulated by the Rest Period Act and provides that the time spent by an employee on stand by duty shall not be considered as working hours, subject to certain conditions. The Law provides that on-call duty is to be regarded as working hours in cases where the employee is specifically called on to perform work during such duty period. In brief, the Austrian law provides that in certain circumstances, such as where an employee put under strict restrictions during his/her free time or has been called to perform the work on the employer’s premises or any other place as may be assigned by the employer, on-call duty performed by the employee shall be considered in as the total working hours. 

Findings of the European Court of Justice 

Following are some of the established principles by the European Court of Justice based on the above two case laws – 

• Firstly, ECJ has clarified in their rulings in respect of both the cases, that they have merely provided interpretation (guidance) with respect to the European Law that would help the national courts to derive a resolution for the dispute and the final decision rests with the national courts to be decided.
• Secondly, ECJ has pointed out the fact that “stand by” duty has to be determined either as “Working time” or “Rest period” because the EU Working Time Directive 2003/88 does not create an intermediate category. As per Article 2 of the EU Working Time Directive 2003/88 “Working time refers to any period of time during which an employee works in accordance with national law, is available to the employer and carries on his job or performs duties and rest time is referred to any period outside of working hours.
• Thirdly, ECJ has found that only in exceptional cases, stand by duty can be considered as working hours within the meaning of the Directive. The court has provided that one of the basic ingredients based on which it can be derived whether or not on stand by duty is to be determined in the employee’s working hours depends on the restrictions that have been imposed on the employee by either the collective agreements, national law, etc. However, such restrictions do not include any organizational constraints such as the place of residence of the employee provides for few opportunities for leisure, etc. ECJ has clarified that depending upon the overall circumstances and facts of the case, the national courts shall decide whether standby duty shall be included in the working hours or not. In brief, the decision rests upon the individuality of each case.
• Fourthly, ECJ has also stressed one 1 very important point which shall be taken into consideration by the National Courts while deciding in case of such disputes.

The courts shall consider the proximity within which the employee is placed when called back to work. Certain restrictions such as an employee have to be present within the workplace within a tight deadline and in a certain specified manner as may be indicated by the employer shall be considered as strict restrictions and in such cases, the stand by duty can be considered in the working hours of the employee.

Conclusion

With respect to the cases referred by the National Courts, no decision was delivered by the European Court of Justice which can be considered as authority. Instead, ECJ has sent the matters back to the National Courts to be reconsidered based on the entire facts of the case. However, it can be deduced that in the opinion of ECJ, stand-by duty shall be considered as working time if the employee cannot use the leisure time in an unrestricted manner. Circumstances in which the employee has to report back to work within a specified timeline shall also be taken into consideration while determining whether or not on-call shall be calculated in the working hours of the employee. In situations, where an employee is provided an adequate amount of free time when performing standby duty and is not placed under strict restrictions which would affect their leisure time, the standby duty may not be considered as working time of the employee. 

The final decision is yet to be provided by the National Courts.