In the Matzak case, the ECJ ruled that the stand-by periods that could be spent at home but with a duty for the employee to reach the workplace within 8 minutes if called upon must be regarded as working time as they were significantly restricting the employee’s opportunity to undertake other activities. The ECJ now passed judgment in 2 cases on 9 March 2021 where the claimants similarly had argued that their stand-by time performed outside of the workplace was to be perceived as working time.
Two cases
The first case (Radiotelevizija Slovenija, case C-344/19) concerned a Slovenian technician who performed stand-by time during six hours per day, in the mountains of Slovenia. During those periods, he needed to be reachable by telephone and was required to reach his workplace within a time limit of one hour, if called upon. As his workplace was not easily accessible due to the geographical location in the mountains of Slovenia, the employee did not return home but remained in the vicinity of the workplace in an accommodation put at his disposal by his employer, without there being many opportunities for leisure pursuits.
The second case (Stadt Offenbach am Main, case C-580/19) concerned a German firefighter who regularly had to carry out periods of stand-by time. During those periods, he had to be reachable by phone and able to arrive at the city boundaries within a 20-minute period - thereby being allowed traffic regulations privileges - with his uniform and his service vehicle at his disposal.
The core principle reiterated
The court reiterated in both cases - as it did in the Matzak judgment - that periods of stand-by time that are performed outside of the place of work do not automatically qualify as working time. The Court repeats that stand-by time will only fall within the concept of ‘working time’ if the constraints imposed on the employee during those periods objectively and very significantly affect his ability to freely manage the time during which professional services are not required and to pursue his own interests.
On the other hand, in cases where the obligations imposed upon an employee are less intense and leave him with the possibility to manage his time without all too many issues and to pursue his own interests, only the intervention time during which actual activities are performed qualifies as working time.
Unlike in the Matzak case, however, the Court does not decide whether the stand-by time actually qualified as working time but leaves it up to the national competent courts to decide on the qualification. The national competent courts should thereby carry out an overall assessment of all the relevant facts.
The ECJ, however, did specify which elements the competent national courts need to take into account when determining whether the constraints of the stand-by time significantly affect the employee’s ability to freely manage his time:
the time limit within which the employee needs to be able to resume the work if called upon is relevant. In the overall assessment of the reasonableness of the time limit, other factors also need to be taken into account, such as the obligation to carry specific equipment (which is an additional constraint) or being allowed traffic regulations privileges (which is a facilitator);
the frequency of the interventions and the activities that usually need to be performed during the stand-by time are also relevant.
Working time does not necessarily equal salary
Further, the Court reminds us that the way in which workers are remunerated for periods of stand-by time is not regulated on an EU level. Even though classified as working time, periods of stand-by-time during which no activities are performed can be remunerated differently than working time during which actual activities are performed. On the other hand, it is possible that employees are compensated for the inconvenience caused by the stand-by-time also when the stand-by time does not classify as working time.
Lastly, the Court emphasizes that employers’ duties with respect to health and safety in any case apply, irrespective of whether the stand-by time is classified as working time. More specifically, the Court makes the remark that stand-by time that is particularly long or frequent constitutes a psychosocial risk to the safety or health of workers, especially if it concerns stand-by periods during the night.
Key takeaways
Whether periods of stand-by time are considered ‘working time’ is subject to a case-by-case assessment. The main elements to consider are the time limit during which the employee should make himself available and the frequency and nature of the activities to be performed during stand-by time. If you come to the conclusion that stand-by time is indeed working time, then you should look into how these hours will be remunerated or compensated by the company.
