The Court of Justice of the European Union clarifies the determining criteria as to when a period of stand-by time according to a stand-by system is, in its entirety, working time: only when it follows from an overall assessment of all the circumstances of the case that the constraints imposed on workers objectively and very significantly affect their ability to manage their free time during that period.
The case law saga concerning the issue of working time during a period of stand-by time has recently been relaunched by two rulings of the Court of Justice of the European Union of 9 March 2021. Previously, the Court had ruled that the stand-by time spent at the workplace constituted working time in its entirety, whereas the mere fact of being available for a call outside the workplace did not. A few years later, the Court clarified its ruling by adding that the period of stand-by time should also be considered as working time if the specific conditions of the stand-by time justify it (e.g., if the period of time to arrive at the workplace is very short, if the frequency of interventions is high, etc.).
In its judgments of 9 March 2021, the Court clarifies the outlines of its case law on the taking into account of the specific conditions of the period of stand-by time. The Court considers that a period of stand-by time only constitutes, in its entirety, working time when the constraints imposed on workers objectively and very significantly affect their ability to manage their free time during that period. Conversely, the Court considers that the organisational difficulties that a period of stand-by time may cause for the worker and which are the consequence of natural elements or of the worker’s free choice are irrelevant as is the fact that the immediate environment of the place concerned is not conducive to leisure.
The first case concerned a technician who was responsible for ensuring the operation, for several consecutive days, of a transmission centre in the mountains that is very difficult to access. During the period of stand-by time, the worker was not obliged to remain in the place determined by the employer, but he had to be contactable by telephone and be able to return there within one hour, if necessary. However, given the location of the centre, the worker was, in fact, obliged to remain at his place of work, without any possibility of leisure. The Court considered that these were organisational difficulties and not constraints imposed by the employer.
The second case concerned a firefighter who had to execute periods of stand-by time according to a stand‑by system. During those periods, he was not required to be present at a place determined by his employer but had to be contactable and able to reach, if alerted, the city boundaries within 20 minutes with his uniform and the service vehicle made available to him, with which he could depart from certain rules of the highway code.
In these judgments, the Court also recalls that the classification of working time or rest periods has no effect on the system of remuneration set up by the employer in accordance with national legislation. It also has no effect on the rules on workers’ health and safety. The employer may therefore not introduce periods of stand‑by time which would jeopardise the health and safety of his workers on the grounds that these periods are classified as “rest periods”.
In order to limit the risk of a period of stand-by time according to a stand-by system being considered as working time, certain criteria can be taken into account, such as not imposing a fixed location during stand‑by time and providing for a reasonable call-back period. The rules on health and safety at work remain applicable even if the period of stand-by time is considered as a rest period.