Standby periods and 'working time'
DJ v Radiotelevizija Slovenija; RJ v Stadt Offenbach am Main
Where a worker must be contactable and attend work in a specified response time, he or she will only be working for the purposes of the Working Time Directive if such constraints ‘objectively and very significantly’ affect the worker’s ability to devote that time to his or her own interests.
One case concerned a specialist technician, DJ, who was responsible for operating television transmission centres situated in the mountains in Slovenia. He worked daily shifts of 12 hours and he had six hours of standby time per day. He didn’t have to stay at the transmission centre but had to be available by telephone and be able to return to the transmission centre within one hour. The access to the transmission centre is very difficult and its geographical location is very remote. For those reasons, DJ had to stay at the work site during his stand-by hours in service accommodation and he had very few opportunities for leisure activities at the location. The other case concerned a public official, RJ, carrying out activities as a firefighter. In addition to his regular service hours, he had to carry out periods of standby time. During the stand-by hours, he had to be reachable and be able to reach the city boundaries within 20 minutes with him wearing his uniform and the service vehicle made available to him.
Both workers claimed that due to the restrictions inherent in the standby systems they had to work, such periods should be considered in their entirety as ‘working time’ under the Working Time Directive and remunerated accordingly, irrespective of whether or not they had undertaken any specific work during those periods.
In neither case did the ECJ feel able to reach a conclusion on either DJ’s or RJ’s case as these were matters for the national courts to decide. It did however provide guidance on the questions referred to it.
In both cases, the ECJ held that a period of standby time must be regarded as working time in its entirety when the constraints imposed on the person during standby time ‘objectively and very significantly’ affect that person’s ability to freely manage his time during which his professional services are not required. In the absence of such constraints, only the working time when actual work is performed must be classified as working time.
The factors that will be relevant when assessing whether the constraints imposed on a worker during standby are such as to warrant classifying that period as ‘working time’ include the required response time during standby. If a worker is allowed a reasonable time to resume his professional activities, such that he may plan his personal and social activities, then that period will not amount to ‘working time’. Conversely, if a worker must return to work within a few minutes, that period must be regarded as working time. The frequency with which workers are called upon during standby is also relevant - the higher the frequency, the less scope for the worker to freely manage his time.
When determining whether standby time is ‘working time’, only constraints imposed by the law, a collective labour agreement, or the employer, on the person may be taken into consideration. For example, organisational difficulties are not relevant in such an assessment.
Nothing in EU law prevents a national law, collective labour agreement or employers from remunerating differently any standby working time during which active duty is executed and standby working time during which no active duty is performed.
These judgments are not a model of clarity. That said, employers that have standby systems and whose employees are not remunerated for their standby hours should review their policies to establish if their standby hours policies are a breach of EU legislation on working time. While ECJ decisions no longer bind courts or tribunals post-Brexit, they can be taken into account by courts and tribunals when applying the Working Time Regulations 1998.