On-call working
On-call working is defined by judgements from the European Court of Justice (ECJ) on the interpretation of the working time directive (Directive 2003/88EC of 4 November 2003) as the directive does not contain a definition of on-call working. The ECJ has held that on-call duty performed by doctors, where they are required to be present in the hospital, is regarded in its totality as working time. This ruling was seen in the case of Sindicato de Médicos de Asistencia Pública (Simap) v. Conselleria de Sanidad y Consumo de la Generalidad Valenciana, (Case C-303/98).
It says: ‘Time spent on call by doctors in primary health care teams must be regarded in its entirety as working time and, where appropriate, as overtime, within the meaning of Directive 93/104 if they are required to be at the health centre. If they must merely be contactable at all times when on call, only time linked to the actual provision of primary health care services must be regarded as working time’
Working time includes the time where the person concerned is permitted to rest at the place of work during the periods when their services are not required. This was ruled on in the case of Landeshauptstadt Kiel v. Norbert Jaeger (Case C-151/02, decided on 9 September 2003).
It says: ‘On-call duty (‘Bereitschaftsdienst’) performed by a doctor, where he is required to be physically present in the hospital, must be regarded as constituting, in its totality, working time for the purposes of that directive, even where the person concerned is permitted to rest at his place of work during the periods when his services are not required, with the result that that directive precludes legislation of a Member State which classifies as rest periods an employee's periods of inactivity in the context of such on-call duty’
On 5 October 2004, in a further judgment (Joined cases C-397/01 to C-403/01), the ECJ confirmed its ruling that on-call work has to be regarded as working time and that exemptions from the scope of the directive have to be interpreted in a very narrow way.
These judgements have been controversial as they have resourcing and staffing implications for health and emergency services. Therefore, in 2004, the European Commission issued a proposal to amend and clarify the directive in relation to three critical issues, one of which was the treatment of on-call working. The Commission had proposed a new differentiation between active and inactive parts of on-call time, whereas the European Parliament favoured any period of on-call time, including inactive time, spent on the employer’s premises, being counted as working time. A failure to reach agreement between the Commission and the Parliament resulted in the matter being transmitted to a Conciliation Committee in 2009. On 28 April 2009, the committee reported its failure to find a compromise, the first time that no agreement could be reached at the conciliation stage. In March 2010, the Commission issued a first stage consultation document to the EU-level social partners, asking them for their views on a review of the directive, including the issue of on-call working.
See also: night work; rest periods; shift work; working time and collective agreements; opt-out