Standby time qualifies as working time only if major constraints are imposed on the employee which objectively impede him or her from managing such time freely, the Court of Justice has recently affirmed.
The EU’s Working Time directive makes provision for certain minimum safety and health requirements relating to the organisation of the working time of employees. These relate to minimum periods of daily and weekly rest, annual leave, breaks and maximum weekly working time, as well as to aspects of night and shift work.
The facts of this case were briefly as follows:
A firefighter, employed on a part-time basis, was requested by his employer to remain on standby according to a standby system operated by the brigade of the fire station. He was required to participate in 75 per cent of the brigade’s interventions and had the option to refrain from the remaining interventions.
During his periods of standby time, he was not obliged to be present at a specific place. However, upon receiving an emergency call to participate in an intervention, he was obliged to arrive at the fire station within a maximum period of 10 minutes.
The period of standby time according to the standby system was, in principle, seven days a week and 24 hours a day, and was interrupted only by leave periods and periods of unavailability notified in advance.
The firefighter was permitted to carry out another professional activity, provided that such activity did not exceed 48 hours per week on average. In fact, he worked as a self-employed taxi driver.
The firefighter filed a claim before the national courts, alleging that the hours for which he is on standby ought to be classified as ‘working time’ within the meaning of the national law transposing the EU’s Working Time directive. He claimed that this is so since he must always be able to respond rapidly to an emergency call. This prevents him from freely devoting himself to his family and social activities, as well as to his employment as a taxi driver.
He alleged that by imposing standby seven days a week and 24 hours a day, and by refusing to acknowledge that standby hours constitute working time, his employer was in breach of the rules on daily and weekly rest and maximum weekly working time.
The demarcation line as to when standby time can be considered as working time is not always clear
A preliminary reference was filed by the national court before the CJEU requesting guidance as to the extent to which periods of standby time according to a standby system may be classified as ‘working time’ in terms of EU law.
In accordance with previous jurisprudence on the matter, the CJEU affirmed that, in terms of the EU directive, the concept of ‘working time’ covers the entirety of periods of standby time, including those stipulated by a standby system. This is so provided that during such time the constraints imposed on the worker are such as to affect, objectively and significantly, the possibility for him or her to manage the time freely and to pursue his or her own interests.
The CJEU emphasised that an overall assessment of the facts of the case must be made by the national courts in ascertaining whether the relevant employee was indeed subject to such major constraints. An important fact to be taken into consideration is the possibility for the employee to carry out another professional activity during his periods of standby time.
The CJEU maintained that, though this is a significant indication that the terms of the standby system do not place the employee under major constraints that have substantial impact on the management of his time, it must be established that the employee is actually being permitted the effective pursuit of such an activity for a significant portion of the standby period.
The objective factors that may be taken into consideration to ascertain this are the fact that the employee is not obliged to be in a specific place during his periods of standby time or to participate in the entirety of the interventions effected from his assigned fire station. Such factors militate towards a conclusion that he can develop, according to his own interests, another professional activity during his standby time and to devote a considerable part of such time to it.
The national court must nonetheless ascertain that the average frequency of the emergency calls and the average duration of the interventions do not, in practice, prevent the effective pursuit of such other professional activity.
The CJEU observed that organisational difficulties which may result from choices made by the employee cannot be taken into consideration in ascertaining whether major constraints are being imposed on the employee or otherwise during standby time. Such difficulties may arise from the choice of residence by the employee or the distance between the place where he pursues the other professional activity and the place that he must reach within the time limit set by the employer to perform his duties.
The demarcation line as to when standby time can be considered as working time is not always clear. Indeed, this is not the first time that national courts have requested guidance from the CJEU to ascertain how the EU’s Working Time directive ought to be interpreted in this respect. This and similar judgments serve to provide some legal certainty to both employers and employees in ascertaining their rights and obligations in terms of both EU and national law.