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HR Legal

EU narrows when standby time is working time

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Legal news
calendar 19 December 2021
globus Denmark, Sweden, Norway

There is currently a focus on “the right to disconnect” within the EU. The question of when standby time transfers into working time therefore also remains important to determine if companies comply with working time rules or not. However, in a recent decision from the European Court of Justice, it found that a 24/7 standby time within which an employee had to report to work within 10 minutes was not working time. The reason was that the employee was not very significantly restricted while on standby.

In Dublin, a taxi driver worked part-time as a firefighter. His job as a firefighter meant that he had to be on 24/7 standby duty and report to work within 10 minutes if the brigade had to respond to an intervention. While on standby, he was free to spend his time as he wanted, which included that he could continue working as a taxi driver. He was only required to participate in 75 % of the brigade’s interventions and so, the employee could choose if he wanted to show up for each intervention.

However, due to the short response time, the employee felt that he could not actively participate in his family life, social events or be fully dedicated to his work as a taxi driver. He was consequently of the opinion that his standby time 24 hours a day, all week, was working time.

Employee could freely manage his time during standby

According to the European Court of Justice, it plays an important role when determining if standby time is working time whether an employee freely can manage his or her time while on standby. In this case, the court found that the standby time was not working time because the employee overall had not been very restricted in his possibility to manage his free time.

Although the employee considered that he had to both live and work close to the brigade in Dublin to respond to interventions in time, the court emphasized that he was in principle not required to stay in a specific place. Also, his job as a firefighter did not require him to participate in all of the brigade’s interventions – only 75 % of them. Moreover, the employee could also freely take on other employment during his standby duty, which allowed him to work as a taxi driver for up to 48 hours per week.

IUNO’s opinion

This rather specific case about the firefighter opens a more general question for companies on when their employees’ general duty to respond to calls, e-mails etc. during their free time in principle is working time. The answer is important to ensure that companies can comply with working time obligations and avoid claims for compensation from their employees.

In Denmark and Sweden, working time rules mean – among other things – that employees are not allowed to work more than 48 hours over a four-month period. Companies also have to make sure that employees have their daily rest periods, which in Denmark is a 24-hour period within each seven-day period and in Sweden is a weekly period of 36 hours.

In Norway, the requirements are stricter, and working time for standby duties cannot exceed 48 hours in seven days. In Norway, minimum every seventh hour of the standby duty will be considered as a working hour. Therefore, the 48-hour rule is not necessarily in conflict with lengthy standby duties. In terms of the right to disconnect, companies must also make sure that employees have their daily and weekly rest periods. In Norway employees are entitled to a continuous weekly rest period of 35 hours per week. During a standby duty outside the workplace, the rest period will not be abrupted unless the employee is required to respond. This will apply regardless of the 1/7 hour-rule.

IUNO recommends that companies consider if its employees’ duty to be “connected” actually means that the employees are working during their free time. When determining this risk, companies can consider if the employee is required to stay at a specific place, has a short notice to respond, can plan and participate in social and personal activities and interests etc. Oppositely, an employee’s organizational difficulties such as his choice of where to live and work, should not be included in the assessment. Ultimately, it will depend on an overall assessment of all factors in each specific case. We have previously taken a closer look at the European Court of Justice’s other decisions, here.

[The European Court of Justices’ judgement in case C-214/20 of 11 November 2021]

In Dublin, a taxi driver worked part-time as a firefighter. His job as a firefighter meant that he had to be on 24/7 standby duty and report to work within 10 minutes if the brigade had to respond to an intervention. While on standby, he was free to spend his time as he wanted, which included that he could continue working as a taxi driver. He was only required to participate in 75 % of the brigade’s interventions and so, the employee could choose if he wanted to show up for each intervention.

However, due to the short response time, the employee felt that he could not actively participate in his family life, social events or be fully dedicated to his work as a taxi driver. He was consequently of the opinion that his standby time 24 hours a day, all week, was working time.

Employee could freely manage his time during standby

According to the European Court of Justice, it plays an important role when determining if standby time is working time whether an employee freely can manage his or her time while on standby. In this case, the court found that the standby time was not working time because the employee overall had not been very restricted in his possibility to manage his free time.

Although the employee considered that he had to both live and work close to the brigade in Dublin to respond to interventions in time, the court emphasized that he was in principle not required to stay in a specific place. Also, his job as a firefighter did not require him to participate in all of the brigade’s interventions – only 75 % of them. Moreover, the employee could also freely take on other employment during his standby duty, which allowed him to work as a taxi driver for up to 48 hours per week.

IUNO’s opinion

This rather specific case about the firefighter opens a more general question for companies on when their employees’ general duty to respond to calls, e-mails etc. during their free time in principle is working time. The answer is important to ensure that companies can comply with working time obligations and avoid claims for compensation from their employees.

In Denmark and Sweden, working time rules mean – among other things – that employees are not allowed to work more than 48 hours over a four-month period. Companies also have to make sure that employees have their daily rest periods, which in Denmark is a 24-hour period within each seven-day period and in Sweden is a weekly period of 36 hours.

In Norway, the requirements are stricter, and working time for standby duties cannot exceed 48 hours in seven days. In Norway, minimum every seventh hour of the standby duty will be considered as a working hour. Therefore, the 48-hour rule is not necessarily in conflict with lengthy standby duties. In terms of the right to disconnect, companies must also make sure that employees have their daily and weekly rest periods. In Norway employees are entitled to a continuous weekly rest period of 35 hours per week. During a standby duty outside the workplace, the rest period will not be abrupted unless the employee is required to respond. This will apply regardless of the 1/7 hour-rule.

IUNO recommends that companies consider if its employees’ duty to be “connected” actually means that the employees are working during their free time. When determining this risk, companies can consider if the employee is required to stay at a specific place, has a short notice to respond, can plan and participate in social and personal activities and interests etc. Oppositely, an employee’s organizational difficulties such as his choice of where to live and work, should not be included in the assessment. Ultimately, it will depend on an overall assessment of all factors in each specific case. We have previously taken a closer look at the European Court of Justice’s other decisions, here.

[The European Court of Justices’ judgement in case C-214/20 of 11 November 2021]

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