Working time for on-call employees

In 2021, the CJEU was very efficient as regards delivering interesting judgments on the term working time in relation to on-call work based on the EU working time directive. In Denmark, we have implemented large parts of the working time directive into the act on implementation of parts of the working time directive and the working environment act.

In the acts, you will find regulations on the daily and weekly rest periods, daily breaks during the working hours and the so-called 48-hour rule stipulating that the average working week generally must not exceed 48 hours.

It is, however, important to remember that the working time directive does not include any provisions on salary for performed working time, as this (still) is a matter which is governed by the member states. The CJEU thus only treats the distinction between working time and rest periods.

The firefighter and the technician

Firstly, we want to emphasise two different cases, in which the CJEU delivered its judgments on the same day - 9 March 2021 - since both cases regarded the question whether an on-call duty should be regarded as working time or a rest period (leisure time).

The first case concerned a German firefighter who during his on-call duty had to be prepared to appear at the city boundary within 20 minutes, fully uniformed and driving his emergency vehicle. The other case concerned a Slovenian technician within telecommunications, who had to be able to appear at a transmission center on a remote mountain within 1 hour.

In both cases, the CJEU referred to previous judgments, including the so-called Matzak judgement where the CJEU found that a firefighter’s on-call duty, during which the firefighter had to appear at work from his house within 8 minutes, must be regarded as working time. In the two new cases, the question was whether the on-call duty should correspondingly be regarded as working time.

The CJEU concluded that the on-call duties in principle could be regarded as working time but, however, that it was not necessarily the case. The assessment thereof was left with the member states, which in particular had to consider the intensity of the on-call duty, including how much travel time the specific employee had from home and to work and how often the employee was actually called to work.

Reserve employee with a 2-minute notice

Secondly, we want to mention a judgment delivered by the CJEU on 9 September 2021 which regarded a Czech firefighter who was working on a shift with two daily breaks of 30 minutes each. The firefighter was, however, obligated to be ready in two minutes in case of an emergency during a break. The CJEU was to decide whether the firefighter’s breaks were rest periods or in fact working time.

As in the cases mentioned above, the CJEU found that the memberstate had to make the assessment in the case. The CJEU, however, stated that the decision had to made based on an assessment of whether the possibility of an emergency objectively and considerably limited the firefighter’s options, which were already limited during a break of 30 minutes.

The intensity of the on-call duty, including and especially the duration of the on-call duty must thus be regarded considering how the employee’s options for organising his time during a on-call duty have already been limited.

The CJEU thus provides an option for regarding the specific on-call duty as a rest period, regardless that a 2-minute notice must be considered as being quite radical and limiting.

If you have any questions regarding the rules on working time and rest periods, Bird & Bird’s specialised labour and employment team is always ready to assist you.