The entire stand-by period can only be considered as working time if the constraints imposed on the employee significantly affect his/her ability to manage his/her free time during such period, the Court of Justice of the European Union (CJEU) has recently affirmed.
The EU’s Working Time Directive sets out the minimum safety and health requirements for the organisation of the working time of employees. The provisions of the said directive regulate matters ranging from minimum periods of daily and weekly rest, annual leave, breaks and maximum weekly working time to aspects of night and shift work.
The facts of the two cases that came before the CJEU and which dealt with the same issue were briefly as follows: In one of the cases, a technician was responsible for ensuring the operation, for several consecutive days, of television transmission centres situated in the mountains. Over and above the 12 hours of normal work, he was expected to remain on stand-by for six hours per day. During such periods, he was not obliged to remain at the transmission centre but he had to be contactable by telephone and able to return there within an hour, if necessary. Due to the geographical location of the transmission centres, he was in practice obliged to remain in the same area as the centres while on stand-by, without many opportunities for leisure pursuits.
In the other case, a public official carried out activities as a firefighter. In addition to his regular service hours, he regularly had to carry out periods of stand-by time according to a stand-by system. During such periods, he was not required to be present at a place determined by his employer, but had to be reachable and able to reach, if alerted, the city boundaries within a 20-minute period, with his uniform and the service vehicle made available to him.
The two claimants considered that, owing to the restrictions imposed upon them, the entire periods of stand-by time were to be recognised as ‘working time’ and remunerated accordingly, irrespective of whether they had carried out actual work during such periods. In both instances, a preliminary reference was filed before the CJEU by the respective national courts of the two cases. The two courts requested guidance from the CJEU as to the extent to which periods of stand-by time according to a stand-by system may be classified as ‘working time’ or as ‘rest periods’, in terms of the EU’s Working Time Directive.
It is for the national courts in all such cases to carry out an overall assessment of the facts at hand
The CJEU observed that a period of stand-by time must be classified as either ‘working time’ or a ‘rest period’, as those two concepts are mutually exclusive. It noted that a period during which no actual work is carried out by the employee on behalf of his/her employer does not necessarily constitute a ‘rest period’.
Relying on previous jurisprudence on the matter, the court went on to assert that a period of stand-by time must automatically be classified as ‘working time’ when the employee is obliged, during the said period, to remain at the disposal of the employer at the workplace itself rather than at home. The entire stand-by period should also be considered as ‘working time’ where the constraints imposed on the employee objectively and significantly affect his/her ability to freely manage such time and to pursue his/her own interests.
The CJEU emphasised that, in such cases, only constraints imposed by law, by a collective agreement or by the employer, ought to be taken into consideration. Any organisational difficulties caused by the stand-by period that are the result of natural factors or free choice of the employee cannot be taken into consideration. By way of example, the fact that there are limited opportunities for leisure pursuits within the area which the employee is unable to leave during the stand-by period should be considered as such an organisational difficulty.
The CJEU affirmed that it is for the national courts in all such cases to carry out an overall assessment of the facts at hand. The cardinal rule remains that a stand-by period cannot be automatically classified as ‘working time’ unless the employee is required to remain at the workplace. In all other cases, account must be taken of the reasonableness of the time limit within which the employee must resume work as from the moment when the employer requires his/ her services.
Factors such as an employee’s obligation to have specific equipment with him/her when returning to the workplace as well as facilities made available to the employee, such as a service vehicle with privileged road rights, must be taken into consideration when assessing the reasonableness or otherwise of such time limit. Another factor to be taken into consideration by the courts is the average frequency of the activities that the worker is requested to undertake over the standby period.
The CJEU emphasised that the way in which workers are remunerated for periods of stand-by time is not regulated by the Working Time Directive. Hence, even when the entire period must be considered as ‘working time’, national law, a collective agreement or the employer may regulate remuneration in such cases differently and depending on whether work is actually carried out. Also, in so far as stand-by periods which cannot be classified as ‘working time’ are concerned, EU law does not preclude the payment of a sum to compensate workers for the inconvenience caused to them.
The CJEU concluded by emphasising that employers must in all cases also abide by the obligations provided for in EU laws regulating health and safety at the workplace. Thus, employers cannot establish periods of stand-by time which, due to their duration or frequency, constitute a risk to the safety or health of workers, irrespective of the fact that such periods cannot be classified as ‘working time’ in terms of the above criteria.
Employers must always carefully assess, using the guidelines provided by the CJEU, whether any stand-by time which their employees are requested to carry out, ought to be considered as working time or otherwise. In this way, they can ensure that they do not fall foul of the relevant labour laws which seek to ensure that employees are fully protected at the workplace and their rights guaranteed.
Mariosa Vella Cardona, freelance legal consultant