A period during which an employee is on call or on standby constitutes working time only if the constraints imposed significantly affect his ability to manage his leisure time during that period.

ECJ Judgment 9 March 2021 docket no. C-580/19

The case originates from a claim brought before the German Administrative Court by a firefighter seeking recognition of periods of standby as working time, with the right to payment of the corresponding  remuneration, irrespective of whether or not he actually worked during the standby periods.
The firefighter was obliged to guarantee periods of availability, in addition to normal working hours, during which he had to make himself available and, in the event of a call-out, be able to reach the firestation to which he was assigned within twenty minutes of the call-out, using an emergency vehicle provided by the employer for this purpose. 
The Administrative Court of Darmstadt, Germany, asked the ECJ for a preliminary ruling ON whether – within the meaning of Article 2 of Directive 2003/88 – periods of standby duty are to be regarded as working time even though the employer has not fixed a place where the employee is required to be physically present but is nevertheless significantly restricted in his choice of location and in his opportunities to devote himself to his personal and social life and whether the average frequency with which he is actually called out during that period is to be taken into account in the context of that classification.
The ECJ reminds us that Directive 2003/88 defines the concept of “working time” as any period during which the worker is at work, at the employer’s disposal and carrying out his activity or duties, in accordance with national law and/or practice.
The Court goes on to say that a period during which no activity is actually carried out by the worker for the benefit of his employer does not necessarily constitute a “rest period”.
Thus, with regard to periods on stand-by, as is clear from the ECJ judgment, they certainly fall within “working time” within the meaning of Directive 2003/88 if the worker is obliged to be physically present at the place indicated by the employer and to be at the employer’s disposal in order to be able to provide his services immediately if needed.
Whereas, the Court of Justice continues, stand-by duty does not imply an obligation on the part of the worker to remain at the place of work, such period must nevertheless be classified “as ‘working time’ within the meaning of Directive 2003/88, where, having regard to the objective and quite significant impact of the constraints imposed on the worker as regards the latter’s opportunities to devote himself to his personal and social interests, it differs from a period during which the worker must merely be available to his employer so that the latter may contact him”.
According to the Court of Justice, the notion of “working time”, within the meaning of Directive 2003/88, includes “all periods of on-call time, including standby duty, during which the constraints imposed on the worker are such as objectively and very significantly to affect his ability, during such periods, to manage freely the time during which his professional activity is not required and to devote such time to his own interests”.
On the other hand, the Court continues, “where the constraints imposed on the worker during a given on-call period do not reach such a degree of intensity and enable him to manage his time and devote it to his own interests without major constraints, only the time connected with the work which, if any, is actually performed during such a period constitutes ‘working time’ for the purposes of the application of Directive 2003/88”.
In particular, the judgment observes that in order for on-call time to become working time, it is necessary to assess the constraints imposed by national legislation, a national collective agreement or the employer, and not the organisational difficulties which are the result of the employee’s free choice (such as, in the present case, the considerable distance separating the employee’s freely chosen domicile from the place which he must be able to reach within a certain period of time during his on-call time).
Therefore, the Court of Justice concluded that, in order to establish whether on-call time is part of working time, it is for the national courts to make an overall assessment of all the circumstances of the case – in particular, the consequences of an assigned time limit and, where appropriate, the average frequency of attendance during that period – in order to assess whether the constraints imposed on the worker are such as to prejudice in an objective and very significant manner his ability to freely manage, during the same period, the time during which his services are not required.
In light of this, with regard to the case at hand, the Court, while referring the assessment to the national court, underlines the small number of interventions carried out during stand-by duty, and the time limit to reach the workplace, equal to 20 minutes, which is considered reasonable, also in the light of being able to use the service vehicle made available by the employer, which benefits from a right of way as an exception to the Highway Code.