The "working time" during periods of on-call time outside the workplace
Published on 29th Nov 2021
Working time is a determining element of employment relationships, but it is often difficult to determine what is meant by it. In particular, this question becomes particularly complex when we talk about "on-call time", which is the time during which employees may be required to provide services while they are enjoying their leisure and rest periods. The Court of Justice of the European Union has ruled on this matter on numerous occasions, in order to determine under what criteria on-call time is to be considered as "working time".
Since the publication of Royal Decree-Law 8/2019, of 8 March, on urgent measures for social protection and the fight against precariousness in the working day, companies are obliged to keep a daily control of the working day. In light of this new obligation, one of the issues that has raised the most problems is the determination of what is understood by "working time" and what is, on the contrary, "rest time".
The legal definition of "working time" is based on Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (hereinafter "the Directive"). Article 2 defines "working time" as any period during which the employee is working, at the employer's disposal and carrying out his/her activity or duties, in accordance with national laws and/or practice. On the other hand, "rest time" is defined, by contrast, as any period which is not "working time", the two concepts being mutually exclusive. Consequently, in the context of an employment relationship, any period shall be classified as either "working time" or "rest time".
At the national level, Article 34.5 of Royal Legislative Decree 2/2015, of 23 October, which approves the revised text of the Workers' Statute Law establishes that "working time" shall be calculated in such a way that both at the beginning and at the end of the daily working time the employee is at his/her workstation. In this way, case law understands that on-call duty requiring physical presence is "working time" as the employee is at the disposal of the employer at the workplace (or at the place determined by the employer).
However, the question arises as to in which cases and under what criteria should be considered as "working time" the non-attendance on-call duty, in which the employee is not physically present at the workplace and is enjoying leisure and rest period, but must be available if the employer requires him/her to provide services.
The Court of Justice of the European Union (hereinafter "CJEU") has ruled in this regard on several occasions, in order to determine whether on-call duty or breaks during work constitute effective "working time" or "rest time".
In its judgment of 9 March 2021 (Case C-580/19), the CJEU analyses Article 2 of the Directive in relation to non-attendance on-call duty. The case in question concerns a German firefighter who, in addition to his normal duties, regularly performed on-call duty on a non-attendance basis. Specifically, the on-call duty consisted of answering calls and travelling to the municipal area of the city to which he was assigned, in uniform and using an intervention vehicle, within a period of 20 minutes. The CJEU considers that such periods of non-attendance availability are "working time" as long as the limitations imposed on the employees affect his ability to freely manage the time spent to his own interests. The CJEU ruled in the same way in Case 344/19 (also dated 9 March 2021) in which it concluded that the on-call periods of a specialized technician should be considered as "working time". Even in this case the employer was not obliged to remain at the transmission centre (but only had to be reachable and arrive at the centre within one hour), the CJEU understands that the geographical difficulty of the transmission centres limits the employee's possibilities for leisure time during the on-call period.
The CJEU uses the same criterion to determine when breaks granted to employees during the daily working time are considered "working time" and when they are considered "rest time": if employees are free to manage their time and have a reasonable period to return to work, these breaks constitute "rest time". On the other hand, if the time limit imposed to the employee to return to work limits his/her ability to organize his/her time, then break will be considered as "working time". Specifically, in the judgment of 9 September 2021 (Case C-107/19), the CJEU analyses the case of a firefighter who has two 30-minute lunch and rest breaks during the course of his working day, during which, if he is required to carry out an intervention, he should be ready to leave within 2 minutes. The CJEU considers that such a time limitation affects the capacity to manage time freely, so that meal and rest breaks are considered as "working time", as the employee is required to be constantly on alert.
In short, when determining whether or not rest periods or on-call duty periods do or do not constitute "working time", we must take into account the limitations imposed on the employees, because if they affect their ability to freely manage their time to spent to their own interests, such periods cannot be considered "rest time". In any case, a detailed analysis of the circumstances of each specific case must be carried out before classifying on-call periods as "working time" (or "rest time") in a non-attendance regime.
