ON-CALL TIME AS WORKING TIME

#15On-call time as working time

The Court of Justice of the EU, in Cases C-344/19 and C-580/19 has ruled on the conditions in which on-call time in the form of continuous availability should be considered working time and when only work-related time.

In both cases, in addition to the usual working hours (or in addition to the performance of regular service), the people concerned were required to provide on-call time, in the form of continuous availability. During this time, they did not have to be at the place designated by the employer, but had to be reachable and, if necessary, were obliged to arrive within a relatively short time period.

Given that these on-call times represented significant limitations for both of them, they requested the "on-call time" to be recognized in its entirety as working time and therefore properly compensated.

The Court has ruled, that on-call time (including continuous availability) falls entirely within the concept of 'working time' if the restrictions required on the employee objectively and very significantly affect their ability to dispose freely of their free time. An important conclusion was also that the organizational difficulties which on-call time may cause an employee as a result of natural elements or their free choice are irrelevant - only restrictions which may be taken into account are these inflicted on the employee by national law, by collective agreement or by his employer.

The Court has also emphasized that Directive 2003/88 does not apply to the method of compensation of employees for on-call time and therefore, it does not prevent the employer's decision to take into account differently the periods during which the employee actually carries out the work and those during which he does not work, although both must be regarded as 'working time' in their entirety.