Breaks with a stand-by duty may sometimes be qualified as working time

In order to determine whether the break with stand-by duty constitutes working time, the Court applies several criteria: 

1.    Place where the break is performed

The Court refers back to its previous case law and states that an employee who is required to remain at his workplace during periods of stand-by duty in order to be immediately available to his employer, must remain apart from his family and has little freedom to manage the time during which his professional services are not required. Therefore, this period must be classified as working time in its entirety, irrespective of the professional activity actually carried out by the employee during that period. 

However, even if an employee is not obliged to remain at his workplace during periods of stand-by duty, but must be permanently stand-by, and this has a very significant impact on the possibilities of filling in the time freely during these periods, this period is also fully classified as working time. 

2.    Intervention time

If an employee is given a reasonable period of time during which to resume work and can therefore easily plan personal and social activities, this does not a priori qualify as working time. Conversely, a period of stand-by time during which the time limit within which the employee is required to return to work is limited to a few minutes must, in principle, be regarded, in its entirety, as working time. In that case, it is difficult to plan any leisure time. This will always need to be evaluated following a concrete assessment that takes into account the other constraints imposed on the employee (e.g. unpredictability of possible interruptions of breaks) and the facilities granted to him during the period of stand-by time.

The court also lists a number of criteria that are irrelevant when assessing whether or not there is a question of working time. These are: 

• restrictions which are already necessarily caused by the short duration of the break;
• the fact that the employee rarely needs to intervene during his periods of stand-by duty, but only when the intervention time has such an impact that an employee is significantly restricted in freely using these periods;
• the way how employees are remunerated for periods of stand-by duty (to be determined by national law).

In the case of (breaks with) stand-by duty, it is important to verify what restrictions, facilities are linked to this availability (e.g.: obligation to stay at work, intervention time, number and unpredictability of interventions,…). The more restrictive there are, the more likely it is that the stand-by duty will be considered as working time. To avoid this, it is advisable to impose fewer restrictions or provide additional facilities.