The CJEU clarifies the concepts of working time and stand-by time

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Date:
18 Nov 2021

Newsflash

By:
Dorothée David

In a judgment released on 11 November 2021[1], the Court of Justice of the European Union has added to its case law on the conditions under which a period of stand-by time can be qualified as “working time” within the meaning of Directive 2003/88[2]

The case relates to a retained firefighter employed on a part-time basis by Dublin City Council under the following conditions:

  • the period of stand-by time is, in principle, 7 days per week and 24 hours per day, and is only interrupted by periods of leave and periods for which he has notified his unavailability in advance;
  • the firefighter is required to participate in 75% of the brigade’s interventions, and has the option of abstaining from the remaining interventions;
  • he must arrive at the fire station within ten minutes of receiving an emergency call to participate in an intervention;
  • during his periods of stand-by time, he is not obliged to be present at a specific place;
  • he is permitted to carry out a professional activity on his own account as a taxi driver for up to 48 hours per week on average.

The firefighter took his case to the Labour Court in Ireland, as he felt that the obligation to be permanently in a position to respond rapidly to an emergency call prevented him from freely devoting himself to his family and social activities as well as to his professional activity as a taxi driver. The Irish Labour Court referred the following question to the CJEU: must these periods of stand-by be qualified as working time?

No, said the CJEU, but added the following clarifications:

  • the concept of “working time” within the meaning of the Directive includes all periods of stand-by time, including those according to a stand-by system, during which the constraints imposed on the worker are such as to affect, objectively and very significantly, the possibility for the latter freely to manage the time during which his or her professional services are not required and to pursue his or her own interests (see judgment of 9 March 2021 of the CJEU, Case C-580/19);
  • in this case, the possibility of carrying out another professional activity during stand-by periods is an important indication that the terms of the stand-by system do not place that worker under such major constraints;
  • the fact that he does not have to be in a specific place at any time and is not obliged to participate in the entirety of the interventions, since a quarter of them may take place in his absence, could also constitute “objective factors from which it may be concluded that he is in a position to develop, according to his own interests, that other professional activity during those periods and to devote a considerable part of the time of those periods to them, unless the average frequency of the emergency calls and the average duration of the interventions prevent the effective pursuit of a professional activity capable of being combined with the post of retained firefighter, which it is for the referring court to assess.”

 

 

[1] Judgement of the Court of 11 November 2021, Case C-214/20.

[2] Directive 2003/88 of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, article 2, point 1.