By Pierre Joassart
Associate – Deckers & Joassart

First, a little background: initially, the CJEU’s case-law considered that on-call periods spent in the workplace constituted working time, whereas on-call periods spent outside of the workplace (also known as “stand-by” time) would not constitute working time.

In the “Matzak” ruling on 21 February 2018, concerning a volunteer firefighter from Nivelles, the CJEU “shifted the boundary” between working time and rest time, by considering that “stand-by time which a worker spends at home with the duty to respond to calls from his employer within 8 minutes, very significantly restricting the opportunities to have other activities, must be regarded as ‘working time’.”

Whilst the Matzak ruling meant that it was possible to consider on-call time spent at home as working time, in an identical case to that of Mr Matzak (recalling the 8 minute arrival time), it was not very explicit on the “factors” that determine precisely whether on-call time at home constitutes working time.

The two rulings issued by the CJEU’s Grand Chamber on 9 March 2021 therefore provides welcome clarity.

In one of the two rulings, a German firefighter was on-call at home at nights and weekends. At all times, he had to have his uniform and emergency vehicle on hand and be able to reach the city limits within 20 minutes. When necessary, he could switch on his “siren” and be exempt from the highway code in order to get there faster.

In the second ruling, a technician working for a Slovenian television station had to spend his on-call periods close to transmission centres located in the mountains. It was impossible for him to stay at home whilst on-call, given how far away the transmission centres were. In an emergency, he had to be able to reach the workplace within an hour.

In these rulings, the CJEU reverted to its Matzak case-law, specifying that the notion of working time is designed to cover all on-call periods, including as part of a stand-by regime, when “during which the constraints imposed on the worker are such as to affect, objectively and very significantly, the possibility for the latter freely to manage the time during which his or her professional services are not required and to pursue his or her own interests” (D.J. ruling, C-344/19, paragraph 37).

We therefore clearly see that it is “quality time” and the freedom to use this time to pursue his or her own interests that constitute the evaluation “criteria”.

Against this backdrop, the Court insists upon two “sub-criteria” when evaluating the notion of freedom:

• the required time of arrival (8 minutes in the Matzak ruling, 20 minutes for the German firefighter, one hour for the Slovenian technician…)

As far as this time is concerned, the Court stipulates that “a period of stand-by time during which the time limit within which the worker is required to return to work is limited to a few minutes must, in principle, be regarded, in its entirety, as ‘working time’, within the meaning of that directive, since in that case the worker is, in practice, strongly dissuaded from planning any kind of recreational activity, even of a short duration” (D.J. ruling, C-344/19, paragraph 48).

The Court underlines, however, that this reaction time must be examined under specific circumstances, taking into account the restrictions and facilities granted to the worker, for example:

• the obligation to remain at home
• the obligation to carry specific equipment
• the availability of a service vehicle equipped with a siren
• the option to intervene remotely, from his/her location.

• the average frequency of the actual services normally carried out by that worker.

On the latter point, the Court underlines that if the worker is called upon to act on numerous occasions during a period of on-call time, he or she has less scope freely to manage his or her time, especially if the activity normally required of the worker is of a “non-negligible” duration.

Furthermore, the Court stipulates that “only the constraints that are imposed on the worker, whether by the law of the Member State concerned, by a collective agreement or by the employer pursuant, inter alia, to the employment contract, employment regulations or the system of dividing stand-by time between workers” may be taken into consideration in order to determine whether a period of on-call time is ‘working time’.

By contrast, the Court adds that certain aspects must not be taken into account:

• Organisational difficulties that a period of stand-by time may generate for the worker, which are not the result of such constraints but are, for example, the consequence of natural factors or of his or her own free choice;

On this subject, the Court mentions a substantial distance between the worker’s residence and the place that he or she must be able to reach within a certain time. In this case, the worker has freely chosen to live far away from his or her “place of work”.

The “limited” nature of opportunities to pursue leisure activities in the area where the worker has to be on-call;

• The difficulty in accessing the place of work;
• The employer making service accommodation available to the worker.
• Finally, the Court adds two important clarifications.

On the subject of remuneration, the Court confirms that this is not a matter of European law. It concludes that European law does not preclude an on-call period being remunerated to a lesser degree than a period in which work is actually performed, in the same way that it does not preclude the payment to the worker concerned of a sum intended to compensate him or her for the inconvenience that those periods of stand-by time cause to the organisation of his or her time.

Finally, the Court states that regardless of whether or not these on-call periods are classified as working time, they may still have a psychological impact on the worker. The Court notes that, taking into account the European obligations arising from Directive 89/391, “employers cannot establish periods of stand-by time that are so long or so frequent that they constitute a risk to the safety or health of workers”.

What have we learned?

On 9 March 2021, the Court of Justice in Luxembourg ruled on the method of determining whether on-call time spent at home constitutes working time.

The main assessment criterion is the freedom that the worker has to manage his or her free time during these on-call periods. This criterion is chiefly evaluated on the basis of two factors: the response time and the frequency of calls.