a) ‘On-call’ and ‘standby time’
The situation as regards ‘on-call’ and ‘standby’ time has received specific guidance from the Court, in particular in its Simap, Jaeger and Dellas cases, which concerned doctors in primary care teams and at the hospital as well as a special needs teacher in residential establishments for handicapped young people and adults (131). In those cases, the Court held that the time spent ‘on-call’ by workers is to be regarded in its entirety as working time within the meaning of the Directive if they are required to be present at the workplace. In such a situation, the workers concerned are required to be available to provide their services at a place determined by the employer for the whole duration of the period. The workers are also subject to much greater constraints as they have to remain away from their family and social environment and have less freedom to manage the time during which their professional services are not required (132). In support of its stance, the Court pointed to the fact that excluding ‘on-call’ time from working time if physical presence is required would seriously undermine the objective of ensuring the health and safety of workers by granting them minimum periods of rest and adequate breaks (133). However, when the worker is obliged to remain at the workplace which includes or is indistinguishable from the worker’s residence, that mere fact does not suffice for that period to be classified as ‘working time’ within the meaning of the Directive; rather, the qualification of such ‘on-call’ time as ‘working time’ or ‘rest period’ will depend on the intensity of constraints imposed on the worker by the employer. Indeed, in that case, the requirement that the worker does not leave the workplace does not necessarily mean that the worker must remain apart from his or her family and social environment and thus the obligation to respond to the employer’s calls is less likely to interfere with the possibility to freely manage the time during which professional services are not required (134). It should be noted that ‘on-call’ time has the status of ‘working time’ regardless of whether the person actually works during the period of ‘on-call’ duty (135). This means that if ‘on-call’ time includes inactivity, this is irrelevant for its status as ‘working time’ (136). Similarly, if a rest room is available to workers and they can rest or sleep during the periods when their services are not required, this does not affect the status of ‘on-call’ time as working time (137). In respect of the use of systems of equivalence whereby a ratio is established for the accounting of ‘on-call’ time, the Court has ruled that if such systems do not ensure compliance with all the minimum safety and health requirements, they are incompatible with the Directive (138). In contrast, during ‘stand-by’, where workers must be reachable at all times but are free to choose their whereabouts, or where they must remain at a workplace which is also their home, national courts will need to assess on a case-by case basis whether the constraints imposed by the employers on the workers are such as to preclude the workers from the possibility to pursue their own interests. If this is the case, ‘working time’ covers the entire periods of ‘stand-by time’ (139). Conversely, where the constraints imposed on workers allow them to manage their time and to pursue their own interests without major constraints, only the time linked to the provision of work actually carried out during that period constitutes ‘working time’ (140). In its recent case-law the Court specified the elements to be taken into account to determine the intensity of constraints imposed on workers during ‘stand-by’. The presence of at least one of the two following elements triggers, in principle, the qualification of the entire ‘stand-by’ period as ‘working time’: a very short time (‘a few minutes’) required to resume the work in case of need (141), and a high frequency of calls in conjunction with a ‘non-negligible’ duration of the actual activity performed by the worker, if it is possible to objectively estimate this frequency (142). If the worker is only rarely called upon to act during the periods of stand-by time, these periods are nonetheless not ‘rest periods’ when the time limit within which the worker must return to the activity constrains, objectively and very significantly, the ability freely to manage the time when the worker is not required to work (143). However, even if one of the two elements is present, it may still be that the non-active part of ‘stand-by’ would qualify as ‘rest period’, where facilities and/or leeway granted to the worker enable that worker to use the time for his or her own interests (144). To assess the intensity of constraints imposed on the worker, only the constraints imposed and facilities granted by the employers themselves, by legislation or by collective agreements can be taken into account (145). Such constraints can, for example, include the obligation to have specific equipment (146) or penalties if the reaction time is exceeded (147). Facilities can cover the use of a professional vehicle with special traffic rights (148), absence of obligation to respond to all calls (149) or the possibility to carry out another professional activity during ‘stand-by’ (150). On the other hand, constraints that may affect the quality of workers’ rest during ‘stand-by’ but that are not imposed by the employer, by legislation or by collective agreements are not relevant for the qualification as ‘working time’. These may be natural factors (151) or the workers’ own choice (152). Where ‘stand-by’ takes place during a worker’s break, only the constraints that result from the obligation to remain ready for a call-out within a very short time-limit are relevant for the assessment of whether ‘stand-by’ qualifies as ‘working time’ or ‘rest period’. The fact that the limited duration of a break inevitably also results in constraints is not relevant for this assessment (153). Also irrelevant is the provision of service accommodation located at the workplace or next to the workplace (154). Even in cases where the non-active part of ‘stand-by’ qualifies as ‘rest period’, this does not mean that employers have a free hand concerning the duration and timing of ‘stand-by’. Employers must always comply with their obligations under Directive 89/391/EEC to protect the safety of the workers (155). The Court clarified that it follows from Article 5(1) of that directive that employers are obliged to evaluate and prevent all risks to the safety and health of workers. This includes certain psychosocial risks, such as stress or burnout (156). Thus, workers need to be able to withdraw from the working environment for a sufficient number of consecutive hours, so as to permit them to neutralise the effects of work on their safety or health (157). Consequently, employers cannot establish periods of stand-by so long or frequent that they could put at risk workers’ health (158). The Court indicated that Member States are to define detailed arrangements for the application of that obligation (159).
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.