On-Call but Only Paid if Duties Are Onerous, Top EU Court Says

The EU’s high court ruled in two separate decisions, one involving a Slovenian television technician and another, a German firefighter.

(Image by nerami30 from Pixabay via Courthouse News)

LUXEMBOURG (CN) — On-call time can count as working time, but only occurring regularly and saddling the employee with severe restrictions, the EU’s high court held on Tuesday.

The European Court of Justice ruled in two separate cases, one from Slovenia and one from Germany, where employees had challenged requirements that they be available for work at short notice but officially not on the clock. 

“If the worker is, on average, frequently called upon to provide services during his or her periods of stand-by time and, as a general rule, those services are not of a short duration, the entirety of those periods constitutes, in principle, ‘working time,’” the Luxembourg-based court found in the Slovenian case. 

The Supreme Court of Slovenian, the Vrhovno sodišče, referred one case involving a television technician responsible for the maintenance of transmission centers in the mountains in the Central Europe country. In addition to his 12-hour shift, D.J., as he is identified in court documents, was required to be on call for six hours a day, during which time he was required to be available by phone and to return to the center within an hour.

In a separate case, a firefighter working in the western German town of Offenbach am Main was required to be on standby, on top of his regular duties, and be in the city limits within 20 minutes, in his work vehicle and uniform. Identified as R.J. in court documents, his case was referred by the Verwaltungsgericht Darmstadt, the Darmstadt Administrative Court. 

Both men contested these requirements, arguing that they were so onerous, it made it impossible to maintain a private life.

Under the EU’s 2003 Working Time Directive, on-call time must either be classified as working time or a rest period, depending on what is required of the employee. “The concept of ‘working time’ … covers the entirety of periods of stand-by time, including those according to a stand-by system, during which the constraints imposed on the worker are such as to affect, objectively and very significantly, the possibility for the latter freely to manage the time during which his or her professional services are not required and to pursue his or her own interests,” the Grand Chamber wrote in the German case. 

Whether the specific requirements placed on the two men qualify as severe has been left to the national courts to determine. “It is, however, for the referring court to assess, in the light of all the circumstances of the case, whether, during his periods of stand-by time according to a stand-by system, RJ is subject to constraints of such intensity such as to constrain, objectively and very significantly, the ability that he has freely to manage, during those periods, the time during which his professional services are not required and to devote that time to his own interests,” the 15-judge-panel found regarding the German firefighter. It made a similar determination in the Slovenian case. 

The implementation of the Working Time Directive has been hotly debated at the court over its 20 years of existence. In the landmark 2000 SIMAP decision, the court held that all of the time that workers were required to be on-site for their jobs counted as working time. Three years later, it elaborated in its Jaeger decision that employers remained on the hook even if they gave workers access to a bed. In 2020, the court held that protections extended to the police or other emergency personnel.

The German and Slovenian workers’ cases will now return to their national courts for a final decision. 

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