On-call shifts without requirement to stay at the workplace was working time

In the first case, a technician was on-call six hours a day and had to be able to come to work within an hour. He also had to be available on the phone and was paid 20% of his usual salary during the stand-by time. The employee believed that the on-call shifts limited him to such an extent that he was not in control of his time when he was on-call.

According to the employee, he was therefore entitled to the same hourly pay as for overtime work. He argued that he lived far away from the site and that it was sometimes impossible for him to go home. In addition, there were not many opportunities for leisure activities in the area, and he therefore spent most of the on-call shift at the workplace.

In the second case, a firefighter had special on-call shifts, where he had to be available by answering calls and arrive, dressed in his service uniform and with the service vehicle, within 20 minutes. The employee believed that the on-call shift should count as normal working time, because the stand-by time significantly limited his free time.
The main issue for the European Court of Justice in both cases was therefore whether the on-call shifts could be considered as normal working time if there was no requirement to stay at the workplace.

When are on-call shifts working time?

The European Court of Justice concluded that on-call shifts are considered normal working time if the employee’s personal and social interests are significantly limited. This applies even if there is no requirement for the employee to physically stay at the workplace during the on-call shift.

However, the European Court of Justice did clarify in the first case that limited opportunities for leisure activities during the stand-by time does not in itself affect whether the on-call shift can be considered as working time. In addition, the European Court of Justice noted, in both cases, that a great distance between the employee's home and the workplace also does not determine whether the on-call shift qualifies as working time.

Oppositely, it must be considered working time when an employee has significantly limited in control with respect to their own time and as a result cannot pursue their interests. This is especially true if there is a short deadline for the employee to get back to work, and if the employee is called upon or contacted often during the on-call period by the company. The European Court of Justice emphasized that there is a risk that the employee becomes mentally burdened if they have many on-call shifts, and/or the on-call shifts are particularly long.
The European Court of Justice only considered whether the on-call shifts could be considered as normal working time. The court did therefore not assess if the employees were entitled to salary or overtime pay for the on-call shift.

IUNO’s opinion

Currently there is a specific focus within the EU on "the right to disconnect" and in this connection, the European Parliament has suggested that "the right to disconnect" should become a fundamental right. For this reason, it is interesting that the European Court of Justice now emphasizes that must be considered normal working time when employees are limited significantly during on-call shifts, and that it applies regardless of any requirement to physically stay at the workplace. It could, for example, be important for companies that require their employees to be available outside working hours.

IUNO recommends that companies are aware of whether the employees who have on-call shifts are limited to such an extent that it should be considered working time. In addition, companies should be aware of the increasing attention on "the right to disconnect". It is especially relevant in connection with the current coronavirus situation, where many employees work from home, and where the lines between working hours and free time are more blurred.

[European Court of Justice in case C-344/19 of 9 March 2021 og European Court of Justice in case C-580/19 of 9 March 2021]