Time spent on stand-by: working time after all? Judgment of the European Court of Justice

Stand-by time which a worker spends at home with the duty to respond to calls and reach the work place within 8 minutes is regarded as “working time” by the European Court of Justice.

With this judgment, the European Court of Justice adds a qualification to its previous case law regarding stand-by time. In the past the Court repeatedly ruled that on-call duty, where the worker is on stand-by but does not need to be physically present at the work place, is not working time.

The discussion of whether or not stand-by time is to be considered as working-time seemed settled by the Court. The European Court of Justice repeatedly ruled that the time during which a worker has guard duty at the work place constitutes working time, but on-call duty outside the work place is not to be taken into account as working time.

This case law also reflected in Belgian case law ( see our Newsflash of 9 April 2014 ), where the Supreme Court – taking the criteria of the European Court of Justice into account – came to the conclusion that on-call duty was not to be considered as working time, not even if the worker should remain available within a certain radius of the work place in order to be able to reach the work place within 20 minutes. A minority of the Belgian case law that took the position that on-call duty should be regarded as working time if a worker must be able to reach the work place within a short period of time thus seemed definitively rejected.

In its judgment of 21 February 2018, the European Court of Justice joins this Belgian case law that took the practical modalities of on-call duty into account to decide if on-call duty is to be considered as working time. It therefore appears that from now on the practical modalities of on‑call duty will have to be examined to conclude whether or not it is working time.

> Ensure that your on-call duty is not considered as working time: do not set a fixed place and provide a reasonable period of time to reach the work place