ECJ: On-call duty as working time

Dec 8, 2021 Benn-Ibler Rechtsanwälte

The European Court of Justice (ECJ) has once again examined the question of whether on-call duty is to be considered working time.

In the case at hand, a reserve firefighter worked part-time for the city of Dublin. He is available to his duty station via on-call duty and is obliged to participate in 75% of the fire brigade's operations. He has the option to not take part in the remaining calls. During on-call hours, he does not have to be at a specific location, but he must be able to arrive at the fire station within a maximum of ten minutes. The on-call duty applies around the clock.

He receives a basic remuneration for being on call and an additional remuneration for each assignment. He may work on the side, either independently or for a second employer, provided he does not exceed an average of 48 hours per week. He does this as a taxi driver.

The firefighter was of the opinion that on-call duty should be considered working time, which the City of Dublin rejected.

The case before the ECJ concerned the interpretation of the term "working time" in Article 1 No 2 of the Working Time Directive (2003/88/EC).

The ECJ has already ruled several times that the classification of on-call duty as working time must be assessed on the basis of the concrete circumstances of the individual case. According to the ECJ, the most important factor is whether the restrictions during on-call duty are so intensive that the employee has only very considerably limited possibilities to freely organise his time and devote himself to his own interests.

According to the ECJ, the secondary employment authorised by the employer is an important indication that the employee is not subject to any major restrictions due to the modalities of on-call duty, provided that the employee is actually able to carry out such an activity (also due to the design of the employment contract, collective agreement and national law).

Ultimately, however, it is now up to the competent court in Dublin to decide.

ECJ C-214/20 (11.11.2021)