Court of Cassation confirms that standby duty with strong restrictions for the employee constitutes working time - Please note: such standby duty must consequently be remunerated!

The Court of Cassation, in a judgment of 13 November 2023, confirmed that a standby duty during which employees must constantly be available and are subject to binding obligations imposed by the employer is working time and must therefore be remunerated. However, this remuneration may differ from the wages for actual performance.

Standby duty considered as working time

In line with the jurisprudence of the European Court of Justice, the Court of Cassation confirmed that standby duty during which the worker is not required to be at a particular place, but must constantly be available and is subject to obligations imposed by the employer that significantly restrict his time management, constitutes working time.

The constant availability and short reaction time objectively and significantly restrict the employee’s ability to spend his/her time freely while on standby duty. 

Assessing whether standby duty is so highly constrained that it should be considered working time remains a purely factual question. Labour courts will have to rule on this on a case-by-case basis.

Remuneration

If standby duty is considered working time, this standby duty should be remunerated. 

However, the Court of Cassation explicitly states that a different remuneration may be provided for standby duty. Indeed, according to the Court, the application of different remuneration is possible when the nature of the work is different, which is clearly the case with standby duty. After all, there are periods during which the employee does not actually work, and therefore can be remunerated differently. However, the sectoral minima must always be respected.

Key message

If the standby duty is accompanied by strong restrictions for the employee, the standby duty will be considered working time. In that case, the standby duty should be remunerated. 

It is possible to provide a separate (and thus lower) remuneration for the standby duty during which the employee does not actually perform any work. In the absence of specific agreements, the standby duty is remunerated in the same way as actual work.

We recommend that you examine the specific modalities of the standby duty that are provided in your company and check whether they do not unduly restrict employees. We can assist you in this analysis.