ECJ Advocate-General issues opinions in on-call work and equal treatment cases

European Court of Justice (ECJ) Advocates-General delivered opinions during April 2003 on two important employment-related cases. The first deals with on-call working for hospital doctors while the second deals with equal treatment in the case of subcontracted workers.

In the European Court of Justice (ECJ), the Advocates-General draw up opinions on the cases before the Court. They analyse the facts and legal aspects of the case in detail and present to the Court a proposed solution to the problem. The Court's judges then proceed to make their judgment. The opinions of the Advocates-General are not binding on the Court, although they often provide an indication of the reasoning that the ECJ judges may apply. April 2003 saw the delivery of Advocate-General opinions on two significant employment-related cases.

On-call working by hospital doctors

In case C-151/02, Landeshauptstadt Kiel v Norbert Jaeger, on 8 April 2003 Advocate-General Dámaso Ruiz-Jarabo stated his opinion that all time spent by a doctor on call in a hospital constitutes working time for the purposes of Community law.

The case was referred to the ECJ by a German labour court and concerns an assistant doctor working on-call shifts six times a month, which were compensated for by free time and extra pay. During the on-call periods, he was obliged to stay at the hospital, where he was provided with a bed to enable him to rest when not working.

Under German legislation, the times when a doctor is on call but not working are deemed to be rest periods. However, the doctor believed that they constituted working time, for which he should receive remuneration or be compensated. The ECJ was asked to interpret a number of provisions of the 1993 EU Directive (93/104/EC) on certain aspects of the organisation of working time, relating particularly to whether periods during which doctors are on call in hospitals constitute working time in their entirety, where the doctors are permitted to sleep at the hospital during the time when their services are not required.

Advocate-General Ruiz-Jarabo stated in his opinion that the on-call work in this case can be counted as working time under the Directive, as the employee remains at the place of work and is at the employer’s disposal. Although these conditions may be applied in accordance with national laws and practice, the Advocate-General is of the view that this does not entitle a Member State to consider that a doctor who is on call in a hospital is not at the employer’s disposal during periods of inactivity. The fact that the intensity and extent of activities carried out when on call are not the same as during normal working hours does not mean that periods spent on call constitute rest time. The fact that a doctor is provided with a bed when on call so as to be able to rest occasionally is necessary to protect the doctor’s health and ensure that he or she is able to attend properly to patients.

Therefore, the Advocate-General considers that periods of on-call duties carried out by a doctor in a hospital constitute working time in their entirety, within the meaning of the EU working time Directive, even if the doctor is able to sleep during periods of inactivity. These periods of inactivity cannot, therefore, count as rest periods.

Equal treatment for subcontracted workers

In case C–256/01, Debra Allonby v Accrington & Rossendale College, Advocate-General Leendert A Geelhoed stated on 2 April 2003 his opinion that reliance on the principle of equal treatment is not possible where differences in pay between men and women cannot be attributed to a single source.

Debra Allonby was employed as a part-time lecturer in office technology at Accrington & Rossendale College in the north-west of England from 1990 to 1996 on a succession of one-year contracts, under which she was paid by the hour at a rate determined by the level at which she was teaching. In 1996, the college decided not to renew the contracts of employment of its 341 part-time lecturers and instead to retain their services as subcontractors. Ms Allonby's employment was terminated and she subsequently offered lecturing services to the college as a subcontractor, through an agency. For the lecturers concerned, this arrangement resulted in lower pay and termination of their right to be a member of the relevant occupational pension scheme.

A case of unlawful discrimination on the ground of sex, with regard to pay and the conditions of access to a pension scheme, was taken to a UK court, which referred questions to the ECJ as to whether Article 141 of the Treaty establishing the European Community has direct effect so as to enable a woman to claim equal pay with a man in the circumstances of this case. It also asked whether Article 141 has direct effect so as to entitle Ms Allonby to claim access to the pension scheme either: (i) by comparing herself with a male lecturer employed by the college; or (ii) by showing statistically that a considerably smaller proportion of female than of male teachers who are otherwise eligible to join the teachers’ occupational pension scheme can comply with the requirement of being employed under a contract of employment, and by establishing that the requirement is not objectively justified.

The Advocate-General pointed out that Ms Allonby’s remuneration was received from the agency rather than from the college. Therefore, a difference in pay cannot be attributed to a single source and there is no entity that can be held liable for that difference and for its elimination - which, under case law, is a prerequisite for the application of the principle of equal treatment.

With regard to the right to join a pension scheme, which is a component of remuneration, the Advocate-General pointed out that a comparator is necessary in order to determine whether there is discrimination on the ground of sex. Accordingly, if the comparator is not deemed relevant for pay purposes, then it is not relevant for this aspect of remuneration (ie pensions). However, the Advocate-General stated that this does not mean that there cannot be indirect discrimination stemming from sectoral or legislative pension schemes. In this case, there may be indirect discrimination if it appears that appreciably more women than men are affected by the exclusion of lecturers who teach under an agreement to provide services. However, this is a matter for the national court to decide.

Commentary

These two opinions show the Advocates-General’s latest thinking on the definition of on-call work and on equal treatment in the context of subcontracting. In the first case, if the full ECJ ruling follows the Advocate-General’s opinion, periods of on-call work (including the periods where work is not being carried out) performed by doctors on site will be counted as working time, even if a bed is provided to enable doctors to rest during periods of inactivity. In the UK, for example, where working hours for junior doctors are high, there has been a significant amount of discussion around this issue. This latest development will serve to inform the debate.

In the second case, relating to equal treatment in the case of subcontracting, the Advocate-General has stated the view that no equal treatment case can be brought due to the fact that there is no proper comparator. However, he proposes referring the issue of whether the rules governing membership of the occupational pension scheme are discriminatory back to the national court. (Andrea Broughton, IRS)

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