The classification of on-call duty as working time has been occupying European and German case law for quite some time. Many years ago, the European Court of Justice (ECJ) ruled that on-call duty is to be regarded as working time if the employee has to be at his place of work in order to be able to perform the work at any time. So far, so good. But what if the employee does not have to stay at his place of work, but has to be there or at the place of deployment within a very short time? Already in 2018, the ECJ dealt with the case of a Belgian firefighter who was allowed to stay at home during his on-call duty but had to appear at the station within eight minutes when called. In this case, the ECJ had qualified the on-call duty as working time.
Now, a German fire department officer, who was called upon to perform about 40 on-call duties per year, has filed a lawsuit (ECJ, judgement of March 9, 2021 - C-580/19). During the on-call duties, the firefighter was obliged to reach the city of Offenbach within 20 minutes in his service uniform and in his service vehicle. There were an average of 6.67 calls per year during the on-call services. In this case, the ECJ found that on-call duty may qualify as working time. However, with regard to the question of when exactly on-call duty qualifies as working time, the devil is in the details.
Impairment of free time is decisive
In the case of the German firefighter, the ECJ thus did not decide whether the firefighter's on-call duty should be classified as working time. The ECJ merely established criteria on the basis of which the national court must examine whether the on-call duty constitutes working time.
According to the ECJ, the decisive factor for classifying on-call duty as working time is whether the on-call duty objectively affects the employee to such an extent that he can no longer freely organize his free time and devote it to his own interests. In order to determine whether such an impairment exists, the shortness of the period within which the employee must be present at the place of work must first be examined. When considering the time limit, both obligations, such as the wearing of official clothing, and facilitations, such as the provision of an official vehicle, must be taken into account. Furthermore, the frequency of the assignments must be taken into account. In other words, it must be checked how often the employee is actually called upon to perform work on average during his on-call duty.
When considering the circumstances of the individual case, however, according to the ECJ only those circumstances are to be taken into account which are set by the national legislator, collective agreement or the employer (e.g. by the employment contract). Circumstances which originate from the sphere of the employee, such as a long distance of the place of residence from the place of work, are not to be taken into account.
No statement on remuneration during on-call duty
The new ECJ case law does not make any statement on the remuneration of employees for on-call duty. On the contrary, the ECJ clarifies that national legislation, collective agreements or employment contracts may differentiate between periods during which work is actually performed and periods during which no work is performed when it comes to remuneration for on-call duty - even if the entire period of on-call duty is to be regarded as working time.
Although the new ECJ case law provides criteria for assessing on-call duty as working time, the ECJ also makes clear that it ultimately remains a case-by-case decision as to when on-call duty qualifies as working time. This is unsatisfactory for both employers and employees due to the resulting legal uncertainty. Thus, the German courts will probably have to increasingly deal with the classification of on-call duty as working time in the near future. These proceedings will focus on how long on-call duty may be performed and when rest periods must be taken. Although the ECJ has stated that the remuneration of on-call duty is left to the member states, the court decisions could nevertheless have an impact on the remuneration to be paid. For example, the German Federal Labor Court (BAG) ruled several years ago that the minimum wage may not be undercut for on-call duty that qualifies as working time (BAG, judgment dated June 29, 2016 - 5 AZR 716/15).