Time at home can be working hours

As we have already made clear in our article about time for changing clothes, the distinction between working time and rest periods is practically extremely important. The case law of the ECJ is decisive for the demarcation of these areas. Both working time and rest period are terms expressly listed in Article 2 of Directive 2003/88/EC.

In a recent ruling (ECJ 21 February 2018, docket number C-517/15), the ECJ has now commented on the more precise definition, continuing its case law from 2000 (ECJ from 3. October 2000, docket number C-303/98 – SIMAP) and 2003 (ECJ from 9. September 2003, docket number C-151/02 – Jaeger). The ECJ stated here:

“Article 2 of Directive 2003/88 must be interpreted as meaning 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 for other activities, must be regarded as ‘working time’.”

For German law, too, this judgment is of great importance, strictly distinguishing between on-call service (“Bereitschaftsdienst”) and stand-by duty (“Rufbereitschaft”). On-call duty should be provided if the employee is not to be in the workplace but at a specified location designated by the employer. In contrast during stand-by duty the employee only has to be reachable (by telephone). However, it is possible to impose restrictions (eg. maximum distance, alcohol ban, etc.) for this time period. On-call service is basically regarded as working time, stand-by duty as rest period, since the employee has much more freedom here. The ECJ upholds this differentiation. Nevertheless, in the specific case decided in February 2018 stand-by duty is working time – where the employee must be reachable, but a fixed place is not specified. Due to the duty to arrive at the workplace within 8 minutes, the freedom of the employee is severely limited.

“In the light of those constraints, Mr Matzak’s situation differs from that of a worker who, during his stand-by duty, must simply be at his employer’s disposal inasmuch as it must be possible to contact him.” These specifications “are such as to objectively limit the opportunities which a worker […] has to devote himself to his personal and social interests.”

It is therefore not decisive whether the relevant period is referred to as on-call service or stand-by duty. The only thing that matters is the extent to which the employees’ freedom to shape his own time is limited. In this respect, it always requires a precise examination.

Finally, it is important to mention that this only has an effect on the working-time issues. In particular, the classification has no effect on remuneration:

“Article 2 of Directive 2003/88 must be interpreted as not requiring Member States to determine the remuneration of periods of stand-by time such as those at issue in the main proceedings according to the prior classification of those periods as ‘working time’ or ‘rest period’.”