ECJ rules working hours must include time 'on
call'
The European Court of Justice has ruled that any time an employee spends
on-call while on an employer’s premises must be accounted for as 'working
time' in its totality. Nicole Hallegua, senior solicitor at Berwin Leighton
Paisner’s Employment Department, talks to Jean-Yves Gilg about how the
decision may impact the 48-hour maximum working week...
Time on-call while on the
employer’s premises must be accounted for as 'working time' in its totality,
ruled the European Court of Justice, excluding any weighting mechanisms
allowing the employer to allocate a ratio for remuneration purposes.
“Employers who have workers on-call may need to take this time into account
when calculating whether an employee’s working week will come within the
48-hour statutory maximum. This is particularly important where employees
have not opted out of the 48-hour maximum working week under the Working
Time Regulations,” said Nicole Hallegua, senior solicitor at Berwin Leighton
Paisner’s Employment Department.
The case was brought by Mr Dellas, a special needs teacher, and his trade
union, who disagreed with the calculation of working time used by his
employer to determine the level of pay to which workers in his position were
entitled. They challenged the lawfulness of French legislation under the
EU’s Working Time Directive, arguing that it added a category of working
time that was not provided in the Directive.
French laws implementing the Working Time Directive allows employers in
certain sectors, such as not-for-profit social and medical establishments,
where Mr Dellas worked, to calculate ‘working time’ for employees on night
duty by reference to a weighting mechanism reflecting the periods of
inactivity whilst a worker is on-call. In line with its decisions in
previous cases on working time, the ECJ has reaffirmed in Dellas that
the Working Time Directive did not provide for “any intermediate category
between working time and rest periods” and that “the intensity of the work
done by the employee and his output are not among the characteristic
elements of the concept of ‘working time’". The fact that on-call duty
included periods of inactivity was therefore irrelevant and French law was
incompatible with the Directive.
“French law implementing the Directive introduced a special method of
calculating periods of night duty in a ‘watch’ room to take account of the
lower intensity of work during those periods which sought to muddy the
distinction in the Directive between the concept of ‘working time’ and ‘rest
period’,” says Ms Hallegua. “The UK has implemented the Directive more
strictly in this regard. The ECJ has held that on-call time constitutes
‘working time’ where the worker is required to be at his or her place of
work during this period; there is no intermediate category between ‘working
time’ and ‘rest period’. This is consistent with previous decisions of the
ECJ.”
UK businesses should nevertheless take notice of the case. “The Court is
telling employers that they need to consider, where they have workers
on-call, whether that does, in fact, take them over the 48-hour limit. If
they have, they need to ensure that these employees have opted out of the
48-hour maximum,” says Ms Hallegua. “Many employers often fail to realise
that on-call time can count as ‘working time’ because the employee might not
do very much during that period.”
Certain sectors are particularly affected, such as the medical sector, but
also, generally, any organisation providing an on-going service where
continuity is essential, as these employers usually have employees out
on-call. These include the police, fire-fighters, and the many services
ancillary to medical services such as ambulances, carers, and social
workers.
There are also hidden trappings, where workers are on-call but not at the
employer’s premises. According to Ms Hallegua, “if a worker on-call is not
allowed to leave the employer’s premises, that will almost certainly
constitute ‘working time’. The answer is not so clear-cut if the employee is
at home and could be called. The test here is likely to be the level and
degree of any restrictions on the employee during the period when they are
on-call, such as a requirement to stay awake or restrictions on the
employee’s movement. If, for example, an employee is prohibited from
sleeping during this period then this may constitute ‘working time’”.
“Employers are on much safer ground where employees have opted out of the
48-hour maximum,” continues Ms Hallegua. “Employers need to be particularly
vigilant if employees have not opted out and may well work near the 48-hour
limit even before they have any on-call time.”
Looking beyond the immediate implications of the case for employers, the ECJ
is also making it clear to other governments in the EU that they cannot
introduce variations on the definition of working time. The temptation is
very real in certain sectors, such as the medical sector, where hospitals
are grappling with staff shortage.
(09/12/05)
If you have any comments about this or any other news item or feature,
please respond via e-mail to: [email protected]
The views expressed by our Legal Analysis interviewees are not necessarily
those of the proprietor
Case annotations in other services:-
Dellas v Premier Ministre: C-14/04 [2005] BLD 0212055468 All ER (D) 19 (Dec)
UK
Europe
USA&Canada
Aust.&NZ
Asia