CJEU setting stricter rules for on-call time of workers
The Court of Justice of the EU (CJEU) dealt with a dispute between a Belgian firefighter and his employer regarding the employee’ entitlement for being on call (stand-by duty). The court held that that if the employee had to respond to the employer’s call and arrive at the workplace within eight minutes, it restricted the employee’s freedom to such an extent that it should be viewed as working time rather than as stand-by time. This can also be applied to the Czech legal environment.
Stand-by time means a time on top of the employee’s regular working hours during which the employee does not work but is ready to arrive at the workplace and start working if urgently needed by the employer. Such time is viewed as a period of rest, but employees still have to observe certain restrictions so that they can start working if needed. Employees cannot, for instance, take long-distance trips or drink alcohol. For each hour of the stand-by time, employees are entitled to at least 10% of their average earnings. Being on call is typical for rescue corps, maintenance workers or IT helpdesk staff.
The conditions of the stand-by duty, i.e. the required location of employees, the manner of contacting them and the time limit for arriving at the workplace, can be negotiated freely. Since 2007, the Czech Labour Code only prohibits stand-by duty from taking place at the employer’s workplace; professional literature further deduced that stand-by duty cannot be taking place in such proximity to the workplace that it would interfere with the employee’s personal life to the extent comparable to a stand-by duty at the workplace.
The CJEU has now set more concrete limits. It held that if an employee has to be on call with an arrival time of up to eight minutes, this would constraint them in pursuing their personal interests to the extent that is comparable with the duty to be present at the workplace. The court ruled to this effect despite the fact that the employee’s home was in fact located within the arrival time distance. The stand-by time that is subject to such strict conditions has to be considered working time, with all it entails.
What does this mean for Czech employers? The Labour Code does not limit the extent of stand-by duty, and employers often order employees to be on call for rather long periods of time. If stand-by time were not viewed as a period of rest, it would have to be taken into account when determining working hours available, and when applying limits for overtime work. Moreover, employees would be entitled to full remuneration, rather than the ten percent pay.
To avoid these negative effects, employers should proceed with caution when setting the conditions of on-call duty. The 8-minute criterion cannot be seen as generally applicable – the CJEU only opined on the specific circumstances of the case in question. It is, nevertheless, recommendable to negotiate the conditions of being on call so as to restrict employees as little as possible, while still meeting employers’ operational needs. The CJEU would consider a situation where the employee has to be contactable without being required to be actually present at the workplace to be acceptable (as stand-by time). For many employees, however, on-call duty defined as narrowly as this would not meet its purpose.