On several occasions, the ECJ has commented on the definition of rest periods versus working time and has concluded that a rest period cannot be working time at the same time. The ECJ has stated that the decisive factor determining whether rest periods are considered working time is not the intensity of the work or the actual work efforts. On the contrary, the employee’s physical presence at work - even though it is on-call duty - is covered by the concept working time.
As regards on-call duty where the employee must be available to the employer without being present at the workplace, it is the ECJ’s opinion that the decisive factor is whether the employee is obligated to be physically present on the location specified by the employer so that the employee is available to the employer on that specific location. Consequently, the ECJ finds that on-call duty where the employee is available to the employer, but not obligated to be present on the workplace and therefore able to dispose of his own time, is not considered working time. In connection with this kind of on-call duty, the time actually spent on performing the work may be considered working time.
THE EUROPEAN COURT OF JUSTICE: ON-CALL DUTY WITH LIMITED TIME OFF TO LOOK AFTER ONE’S INTERESTS IS CONSIDERED WORKING TIME
In the specific case, the employee had on-call duty which required that he could answer calls from his employer within eight minutes and was physically present at his home within eight minutes. These conditions significantly limited his possibility of looking after his own personal and social interests. The ECJ therefore found that the on-call duty was considered working time.
ARRANGING THE WORKING TIME
The most recent ruling from the ECJ states that it is important to arrange the working time taking into consideration whether it is to be considered working time or a rest period. The hours when the employee is available to the employer without being present at the workplace may, in the circumstances, be considered working time which may have consequences as to how the working time may be arranged when having to comply with the rules on rest periods and working time.