In its decision from the 9th of September 2021 (C-107/19), the ECJ made clear, that operational readiness does not count as off-time due to the restrictive effect on an employee’s freedom of action.
A Czech firefighter sued his employer, a transport company, for remuneration because the employer only remunerated the employee’s breaks, during which he had to keep himself ready for action throughout by means of a radio and be ready to leave within two minutes in the event of an emergency, as working time when an emergency call-out occurred. The employee wanted to have all breaks during which he had to be on call recognised retroactively as paid on-call time.
The ECJ ruled that breaks during a work shift that are influenced by call and standby duty in such a way that they can no longer be considered as break time must be recognised as working time. For the ECJ, the decisive factor for the differentiation between working time and break time was the possibility for the employee to be able to organise the break time himself. If an employee is forced to be at a certain place within a very short time due to being on call or on standby, his scope of action is restricted to such an extent that this time is no longer a break, but is to be regarded as working time subject to remuneration. The ECJ generally considered this to be the case as soon as the employee is tied to a place by being on call or has to ensure that he or she is always available. Due to the legal assessment of break time as working time, employers are in principle obliged to remunerate this time. However, according to the ECJ, the amount to be paid depends on the national laws: The decisive factor for remuneration according to German law is whether the time in question is classified as on-call duty or standby duty. In the case of on-call duty, in contrast to on-call duty, the employee can freely choose his place of stay and he has a longer lead time until he has to be ready for work at the place of work. In the case of on-call duty, the freedom of action is more intensively restricted and the employee has to be ready for work immediately after being called up. Typical examples are doctors who have to stay at the hospital or firemen who have to stay at the police station. On-call duty is to be remunerated according to the salary agreed in the employment contract. On-call duty may be paid by the employer in deviation from this.
When designing the operational organisation, employers are advised to check whether periods of on-call duty can also be structured as on-call duty. In addition, it is important to ensure that the remuneration of the employee for on-call duty and standby duty is agreed in writing by the employer in order to have clarity about which forms of deployment of the employee are remunerated and how.