The CJEU has clearly set out the main criteria for qualifying on-call time as working time or rest periods, in its Radiotelevizija Slovenija and Stadt Offenbach am Main cases of earlier this year. It now applies the same reasoning to a daily break, during which an employee needs to remain available to respond to emergencies.
Just like in the previous Matzak and Stadt Offenbach am Main cases, the facts concern a firefighter, this time located in Prague (Czech Republic). In this case, it was a company firefighter of the undertaking DPP, who claimed non-paid remuneration relating to his breaks. He was awarded two non-paid breaks of 30 minutes per working day. During these breaks he must carry a device which could call him out for an intervention. When this happens, he has two minutes to respond and start the intervention. According to the company, these interventions only happen occasionally and are unpredictable. Therefore, the company refused to pay the remuneration during the breaks.
The referring Czech court posed several prejudicial questions to the CJEU: in essence they come down to whether Article 2 of the Working Time Directive 2003/88 must be interpreted as meaning that the break granted to a worker during his or her daily working time, during which the worker must be ready to respond to a call-out, within a time limit of two minutes if necessary, must be classified as 'working time' or as a 'rest period', and whether the occasional and unpredictable nature and the frequency of call-outs during those breaks have a bearing on that classification.
The Court of Justice applied its two main criteria:
- the reasonable time limit within which the employee needs to respond;
- the frequency of the interventions.
In this particular case, it is clear that the time limit of two minutes is very restrictive and therefore, clearly pointing towards working time. At the same time, the frequency of the interventions is very low. Nonetheless, the Court holds the vision that even for infrequent interventions, an on-call period can be seen as working time, when the responding time is so short that it effectively limits the possibility for the employee to freely enjoy his own time. The unpredictable nature of the interventions even adds to this view. However, the referring national court should not look to the restriction of the employee's free time, which results from the short duration of the breaks (30 minutes).
In addition, the CJEU also repeats that the Working Time Directive does not include any provision regarding the remuneration of working time. Whether the firefighter has the right to remuneration for the time spent during these breaks, depends on the national legislation (and possibly on sector and company rules).
Key Action Points for Human Resources and In-house Counsel
- Breaks can constitute working time if the employee needs to remain on-call.
- If you want to avoid the qualification as working time, give the employee a reasonable amount of time to respond to the intervention (so he can freely enjoy his own time).
- If this is not feasible, see if it is possible in accordance with national legislation to provide a lower compensation for on-call breaks than for actual active working time.
Source: CJEU (10th Ch.) 9 September 2021, C‑107/19, XR v Dopravní podnik hl. m. Prahy, akciová společnost
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