Time spent on-call is not working time - Confirmation by the Supreme Court

According to a very recent judgement of the Belgian Supreme Court, the so-called "standby services" do not constitute working time, even if the freedom of movement of the employee concerned is limited as a result.

Given the case law of the European Court of Justice, for some time now it has been beyond any doubt that the time during which an employee has guard duty at the work place constitutes working time. Even if the employee is allowed to rest or sleep during such time, the full guard duty is to be taken into account as working time.

However, discussion was still going on with regard to on-call duty, when the employee is not present at the working place, but merely needs to be available in order to possibly go to work if required.

A minority of the case law took the position that on-call duty should be regarded as working time if an employee must be able to reach the work place within a short period of time, so that his/her freedom of movement is restricted.

The Supreme Court has now settled the matter. In a judgement of 10 March 2014, the Court stated that on-call duty where the employee is on standby, but does not need to be physically present at the working place, is not working time. The fact that the employee should remain available within a certain radius of the working place in order to be able to reach the working place within a certain period of time, does not affect this.

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On-call duty is not to be taken into account as working time. Work actually undertaken during this on-call duty is of course to be taken into account as working time.