Custody: working time or not?
February 2022 – Does 'on-call' count as working time? This question was submitted to the Court of Justice of the European Union in mid-November 2021 in relation to the on-call duty of a firefighter. This was not the first time, as the Court had already been asked to rule on the issue in March 2021. The conclusion: simply being on call can also be considered as work.
Fireman
A young Irishman works part-time as a fireman for Dublin City Council. He has to attend a minimum of 75% of the fire brigade's assignments, so he can refuse one in four assignments. While on call, the firefighter is not obliged to be present at a particular location, but if an emergency call is received, the firefighter must be at the fire station within five to ten minutes. This on-call period is twenty-four hours a day, seven days a week, except in the case of leave or unavailability announced in advance.
Our firefighter can also carry out a professional activity at the same time. He works as a self-employed taxi driver. However, he may not spend more than 48 hours per week on average on this other activity, nor may he carry out this other professional activity during his active working hours as a reserve firefighter. The active working hours are not only the hours spent responding to an incident, but also the hours spent on other brigade activities, such as training.
Reachable, available, callable
The firefighter believes that the hours during which he is callable should be qualified as working time. He argues that he must always be able to respond quickly to an emergency call, so he cannot freely devote himself to family and social activities or to his professional activity as a taxi driver. In his view, Dublin City Council disregarded the rules on daily rest, weekly rest and maximum weekly working time by requiring him to be on call 24 hours a day, seven days a week, and by failing to classify these hours as working time.
Court of Justice
The specific question the Court is considering is whether the period during which the firefighter is on call, during which he can carry out an independent professional activity with the permission of his employer, but during which he must arrive at the fire station within ten minutes at the most in the event of an emergency call, must be qualified as working time.
The Court of Justice refers in this respect to Directive 2003/88, which lays down minimum safety and health requirements for the organisation of working time. Working time within the meaning of this directive is any period during which the worker is at work, at the employer's disposal and carrying out his activity or duties, in accordance with national legislation and/or practice. Rest time is any period which is not working time.
According to the Court, a period of on-call time is qualified as working time if the worker has major constraints of such a nature that they objectively and very significantly affect his ability, during those periods, to manage freely the time during which his professional services are not required and to devote that time to his own interests.
Conversely, when the constraints imposed on the worker during a given period of on-call time do not reach such a degree of intensity and allow him to manage his time and devote himself to his own interests without major constraints, only the time linked to the work actually performed during such a period constitutes working time.
But in which cases does on-call duty generate major constraints with a very significant impact on the worker's management of the time during which his professional services are not required?
Major constraints
According to the Court of Justice, account must be taken of the time available to the worker to resume the activities for which he is on call, combined, where appropriate, with the average frequency of the interventions which the worker will actually be called upon to perform during that period.
If the worker has only a few minutes to resume the activities for which he is on call, the entire on-call period should in principle be considered as working time.
Account must also be taken, where appropriate, of any other constraints imposed on the worker and of any facilities granted to him during that period.
It is for the national court to assess whether the firefighter is subject, during his periods of on-call duty, to constraints of such intensity that they affect, objectively and very significantly, his ability to manage freely, during those periods, the time during which his professional services as a reserve firefighter are not required. But the Court subtly adds that :
the firefighter did not have to be in a specific place at any time during the call (he was therefore not obliged to be present at the fire station);
the firefighter was not required to participate in all the interventions from the fire station (he could refuse a quarter of the interventions); and
he was allowed to engage in other professional activity not exceeding an average of 48 hours per week.
These circumstances could, in the Court's view, constitute objective elements which would allow it to be considered that the firefighter was in a position to develop, in his own interests, this other professional activity during these periods and to devote a considerable part of the time to it.
The only objection that could be raised is that the average frequency of emergency calls and the average duration of the interventions prevent the firefighter from effectively carrying out another professional activity.
The Court explicitly rejects organisational difficulties, such as the place of residence chosen by the firefighter or the place where he/she carries out his/her other professional activity.
Obligations also during rest periods
But even if we consider that on-call time does not constitute working time, and that on-call periods must therefore be qualified as rest periods, the employer still has obligations to protect the safety and health of his workers. The employer may not introduce periods of on-call time that are so long or frequent that they constitute a risk to the safety or health of his employee, irrespective of whether these periods are classified as rest periods.
But this must be regulated in the national law of each country.
Belgian law
Does Belgian law comply with this judgment? It can be considered that it does.
Belgian law provides that if services are to be provided during a shift, a salary must also be paid.
However, there is no provision in the law for the case where no services are actually provided, but most collective labour agreements provide for a system of remuneration for on-call duty. It is irrelevant whether or not services are actually provided during these shifts. Companies can derogate from this, but the provisions of the sectoral CLAs are regarded as minimum provisions.
