Stand-by time = working time?

By judgment of 9 March 2021 (docket number: C-580/19) the European Court of Justice (ECJ) has ruled that periods of stand-by time, in their entirety, are considered as “working time” where the constraints imposed on the employees during those periods objectively and very significantly affect their ability freely to manage the time during which their professional services are not required and to pursue their own interests.

Facts:

In the case, a public official carried out activities as a firefighter in the town of Offenbach am Main. To that end, in addition to his regular service hours, he regularly had to carry out periods of stand-by time according to a stand-by system. During those periods, he was not required to be present at a place determined by his employer, but had to be reachable and able to reach, if alerted, the city boundaries within a 20-minute period, with his uniform and the service vehicle made available to him.

The claimant considered that, owing the restrictions involved, his periods of stand-by time according to a stand-by system had to be recognised, in their entirety, as “working time” and remunerated accordingly, irrespective of whether or not he had carried out any specific work during those periods. The claimant brought an action before the Administrative Court Darmstadt following the refusal of his employer to grant his request. The Administrative Court Darmstadt has referred the question to the ECJ for a preliminary ruling under Article 267 TFEU.

Ruling:

As a preliminary matter, the ECJ recalls that a period of stand-by time must be classified as either “working time” or a “rest period” within the meaning of Directive 2003/88, as those two concepts are mutually exclusive.

The ECJ stated that periods of stand-by time, including stand-by time according to a stand-by system, also, in their entirety, fall within the concept of “working time” where the constraints imposed on the employees during those periods objectively and very significantly affect their ability freely to manage the time during which their professional services are not required and to pursue their own interests. Conversely, in the absence of such constraints, only the time linked to the provision of work actually carried out during that period constitutes “working time”.

In that regard, the ECJ states that only the constraints that are imposed on the employee, whether by the law, by a collective agreement or by the employer, may be taken into consideration, i.e. organizational difficulties such as a far-away place of residence of the employee are not to be taken into account.

Furthermore, the ECJ underlines that it is for the national courts to carry out an overall assessment of all the facts of the case in order to determine whether a period of stand-by time according to a stand-by system must be classified as “working time”. In this overall assessment, the period of time within which the employee must be at the place of work, the average frequency of the activities that the employee is actually called upon to undertake over the course of that period, any constraints imposed on the employee such as wearing work clothes and any facilities that are made available to the employee such as the provision of a service car must be taken into account.

Conclusion:

The ECJ’s ruling is not very surprising, as it fits in with previous case law. In 2018 (docket number: C-518/15), the ECJ had already ruled that periods of stand-by time, where the employee must be available for an assignment within a short period of time, can be considered as “working time”.

The decisive aspect for the classification of periods of stand-by time as “working time” will be the degree of constraint. Where the constraints imposed on the employees during those periods objectively and very significantly affect their ability freely to manage the time during which their services are not required and to pursue their own interests, those periods will be classified in their entirety as “working time”.

It is up to the national courts to weigh the specific circumstances of the individual case. In any case, an objectively and very significantly constraint is likely in the case of an directive by the employer to be at a certain place of work within a short period of time (up to 20 minutes).

The ruling only relates to the interpretation of Directive 2003/88, i.e. it has no influence on the question of the extent to which periods of stand-by time are to be remunerated. Accordingly, that directive does not preclude a national law, collective labour agreement or a decision of an employer that, for the purpose of their remuneration, takes into account differently the periods during which work is in reality carried out and those periods during which no actual work is accomplished, even where those periods must be regarded, in their entirety, as “working time” according to Directive 2003/88.