Constitutional Court: employees deserve wages for on-call breaks

The Constitutional Court held that “during a break from work for which an employee is not remunerated, the employee can freely manage their time within their discretion, rest, and not be available to the employer". In contrast, the court pointed out that the firefighter had to be constantly on call during his break and ready to intervene should the situation require. According to the court, this was therefore work that could not be interrupted, and for such work, according to the Labour Code, employees are entitled to remuneration even during a break period, which shall also be counted as working time. The court added that "the period of time during which an employee is ready to intervene is working time regardless of whether the intervention takes place."

This is a landmark decision with impact on both employers and employees. Employees in similar situations may claim compensation for up to the past 3 years. We expect such lawsuits to increase in number.

Another firefighter’s case recently appeared before the Court of Justice of the European Union (CJEU). The employee was in principle on call 7 days per week and 24 hours per day. Yet, he was only required to participate in 75% of the interventions and did not have to be present at a specific place but had to arrive at the fire station to participate in interventions in a relatively short time. During the on-call time, the firefighter worked as taxi driver. The CJEU concluded that “whether that [on-call] time constitutes working time must follow from an overall assessment of all the facts of the case, in particular whether the constraints imposed on the worker during that time are of such a nature as to constrain objectively and very significantly that worker’s ability to freely manage their time and pursue their own interests”. In the case in question, the CJEU concluded that the constrains were not of such a nature as to very significantly affect the employee’s ability to freely manage their time. 

It is clear that on-call workers are entitled to a breather. How big such a break will be depends on the nature of the job and on the set conditions of the on-call status. 

For instance, employees can enjoy a cup of coffee at work, if time allows. However, an afternoon espresso has recently became rather bitter for employees in Italy: after more than a decade of litigation, an employee learned that her broken wrist during an afternoon coffee-break did not qualify as an on-the-job accident and that she was not eligible for compensation from the insurance company. What was the story? The employee went for a cup of coffee with her colleagues during a break and slipped and injured herself as she was returning to the office. The dispute eventually appeared before the Court of Cassation in Rome, which ruled that “coffee was not a need connected with work”, as it could be postponed or cancelled.