EN
HR Legal

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

logo
Legal news
calendar 25 March 2021
globus Denmark, Sweden, Norway

The European Court of Justice has recently, in two different cases, considered when employees' on-call shifts count as working time. In both cases, the employees had to be available with short notice in specific periods of time in case they were called to work. Both employees were not required to stay at the workplace during their on-call shift. The European Court of Justice stated in both cases that an on-call shift is working time if it significantly limits the employee’s personal and social interests during the stand-by 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]

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]

Receive our newsletter

Anders

Etgen Reitz

Partner

Franziska

Brüggemann

Associate

Similar news

logo
HR Legal

11 April 2021

Cross-border employees’ must bring claim in the country they essentially work

logo
HR Legal

9 April 2021

Does the duty of loyalty apply during temporary layoffs?

logo
Data protection HR Legal

5 April 2021

Can companies ask to see their employees’ corona passports?

logo
HR Legal

18 March 2021

New and higher compensation for employee’s invention

logo
HR Legal

18 March 2021

Employee’s private purchase through the company was a consumer purchase

logo
HR Legal

18 March 2021

The temporary layoff period is extended until 1 October 2021

Learning

logo
HR Legal
2 September 2019

Livestream on restructuring in the Nordic Region

logo
HR Legal
2 September 2019

Seminar on restructuring in the Nordic Region (Copenhagen)

logo
HR Legal
3 December 2018

International HR Legal Day 2018

logo
HR Legal
3 December 2018

Seminar on development and employment forms (english)

logo
HR Legal
21 November 2018

Seminar on Employee Influence in the Nordics (Helsinki)

logo
HR Legal
20 November 2018

Seminar on Employee Influence in the Nordics (Copenhagen)