Partner, Member of Board of Directors
Jan Hofkens
Employment
Health
Fraud and internal investigation
jan.hofkens@lydian.be
When is stand-by time at home considered as working time?
The Court of Justice had already clarified in its judgment of 21 February 2018 (Matzak case) that a stand-by time whereby a firefighter must stay at home in order to be present at work within 8 minutes after being called up, is working time in its entirety.
Stand-by time at home may indeed be regarded as working time insofar as the circumstances show that an employee is at the disposal of his employer, without being able to make use of his free time and that concrete modalities of availability justify this.
How this assessment can be made and what concrete criteria must be taken into account was clarified by the Court of Justice in two judgments on 9 March 2021. The first (German) case concerned a firefighter who was not obliged to be at home, but who, in the event of a call, had to be able to reach the city boundaries within 20 minutes in his uniform and with service vehicle, although it was permissible to deviate from the rules of the highway code. A second (Slovenian) case concerned a technician who, during his stand-by time, had to check (remote) transmission centers in the mountains, so that in practice he could not return home during the stand-by time, even though this was not forbidden. In case of a call, he had to be at the workplace within the hour.
1. Which criteria are relevant?
The Court applies two criteria:
1. Duration of the intervention time
A short intervention time of a few minutes (e.g. 8 minutes in the Matzak case, 20 minutes in the German case) is an element for considering the stand-by time as working time in its entirety, as an employee would then in practice be discouraged from scheduling any leisure time. However, this will always need to be evaluated following a concrete assessment that takes into account the other constraints imposed on the employee (e.g. obligation to stay at home) or the facilities granted to him during the period of stand-by time (e.g. firefighter allowed to use the sirens of the service vehicle, possibility to intervene remotely).
2. The average number of interventions carried out during the period of stand-by time
If an employee is called frequently for an intervention during stand-by time, he has fewer opportunities to fill in his time freely during periods of inactivity. This is even more the case when the interventions last longer.
2. Which criteria are irrelevant?
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:
- Organizational difficulties which are the consequence of natural factors or of the free choice of the employee (e.g. distance between the employee’s home and the workplace);
- The limited nature of opportunities to pursue leisure activities in the area that the employee cannot leave during a given period of stand-by time;
- The circumstance that the workplace is difficult to reach;
- The allocation of a service accommodation by the employer in the area of the workplace.
3. No link with remuneration, but a link with well-being (psychosocial risks)
The court repeats that the qualification as working time has no impact on how employees are paid for stand-by time. It is therefore perfectly possible for stand-by time to be paid differently from actual work, for example by awarding a lower stand-by allowance instead of normal remuneration.
Regardless of the qualification of stand-by time (working time or rest time), an employer cannot, on the basis of its general welfare obligations, establish periods of stand-by time that are so long or so frequent that they constitute a risk to the health of employees.
4. TO DO
It is important to verify which modalities are linked to the stand-by time (e.g. obligation to stay at home, intervention time, average number of interventions). The more restrictive the modalities, the more likely it is that stand-by time will be considered entirely as working time. To avoid this risk, you may consider reducing some modalities or providing additional facilities.
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