On-call working is defined by judgments from the European Court of Justice (ECJ) that interpret the working time directive (Directive 2003/88EC of 4 November 2003), due to the fact that the directive itself does not define on-call working. For example, the ECJ has held that the time doctors are on call in a hospital is counted as working time in Case C-303/98 (Sindicato de Médicos de Asistencia Pública (Simap) v. Conselleria de Sanidad y Consumo de la Generalidad Valenciana). This judgment states:
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 workplace 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), where the ruling states:
On-call duty (Bereitschaftsdienst) performed by a doctor, where they are 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 their 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 judgments have been controversial because they have resourcing and staffing implications for health and emergency services. Therefore, in 2004, the European Commission proposed amending and clarifying 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. The failure of the Commission and the Parliament to reach an agreement resulted in the matter going before a conciliation committee in 2009, which failed to find a compromise. 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. After the second consultation in December 2010, the social partners decided to try to negotiate an agreement on the revision of the directive. However, in mid-December 2012, the social partners decided to abandon their talks due to their inability to agree on a joint approach to regulate on-call working, particularly in terms of its link with the use of the opt-out from the maximum 48-hour week.
The European Commission carried out a public consultation on the working time directive, which ran from 1 December 2014 to 18 March 2015 and aimed to contribute to a thorough review and impact assessment of the directive. Once the impact assessment is completed, the Commission will take further decisions in light of its results.
Eurofound report New forms of Employment, published 2015, states that on-call work
involves a continuous employment relationship maintained between an employer and an employee, but the employer does not continuously provide work for the employee. Rather, the employer has the option of calling the employee in as and when needed. There are employment contracts that indicate the minimum and maximum number of working hours, as well as ‘zero-hours contracts’ that specify no minimum number of working hours, and the employer is not obliged to ever call in the worker.
Eurofound notes further that this employment form has emerged or has been of increasing importance over the last decade in Ireland, Italy, the Netherlands, Sweden and the UK.