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ECJ: Stand-by time can be working time, but does not have to be remunerated at the same rate
Stand-by time, in the form of on-call time, constitutes working time when the restrictions placed on the employee very significantly affect their ability to manage their free time – the European Court of Justice (ECJ) confirmed this in two judgments handed down on 9 March 2021 in cases involving a German firefighter (C-580/19) and a Slovenian technician (C-344/19).
- First, the ECJ held that stand-by time falls within the concept of “working time” in its entirety when the restrictions imposed on the employee during these periods very significantly affect the employee’s ability to manage their free time.
- When assessing whether stand-by time constitutes “working time”, only those restrictions that are imposed on the employee, for example, by a collective bargaining agreement or an employer can be taken into consideration.
- An overall assessment of all circumstances must be performed in each case to assess whether stand-by time should be considered “working time”; it will not automatically be the case when the employee is not required to remain at the workplace.
- Second, the Court held that the Directive (2003/88) does not cover how employees are remunerated for stand-by time. The remuneration of periods, in which actual work was performed, and periods during which no actual work was performed, can vary.
- Third, the ECJ observed that the classification of stand-by time not as “working time” but as “rest time” does not affect the obligations on employers. In particular, employers may not establish periods of stand-by time that are so long or so frequent that the minimum rest periods are violated.