ECJ rules that on-call working is working time

In September 2003, the European Court of Justice (ECJ) ruled that time spent by a doctor working in a hospital on an on-call basis constitutes working time in its entirety, even if the employer provides a place of rest for the employee to use when not actively engaged in their duties.

On 9 September 2003, the European Court of Justice (ECJ) issued an important ruling on on-call working. The case (case C-151/02, Landeshauptstadt Kiel v Norbert Jaeger) concerned Norbert Jaeger, who worked as a doctor in a hospital in Kiel, Germany. He regularly performed on-call duties that required him to be present in the hospital and to work when required. This was offset in part by the granting of free time and in part by the payment of supplementary remuneration. He had a room with a bed in the hospital where he could sleep when his services were not required. Current German law distinguishes between 'readiness for work' (Arbeitsbereitschaft), 'on-call service' (Bereitschaftsdienst) and 'stand-by' (Rufbereitschaft), and only readiness for work is deemed to constitute working time in its entirety. On-call service and stand-by are categorised as rest time, apart from the periods during which work is actually performed.

Mr Jaeger believed that all the on-call duty performed by him should be deemed in its entirety to constitute working time and took a case to a regional labour court, which was subsequently referred to the ECJ.

The ECJ Advocate-General, Ruiz-Jarabo, gave his opinion on this case on 8 April 2003, stating that on-call working should be considered in its entirety to be working time, even where the doctor in question is permitted to rest and sleep during periods of inactivity (EU0305204F).

The ECJ is not bound to follow the Advocate-General’s opinion, but often does and has done so in this case. In its ruling, it stated that the decisive factor in considering whether the characteristic features of the concept of working time within the meaning of the 1993 EU Directive (93/104/EC) on certain aspects of the organisation of working time are present in the case of the time spent on call by doctors in the hospital, is that they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need. These obligations make it impossible for the doctors concerned to choose the place where they stay during waiting periods and therefore must be regarded as coming within the ambit of their duties. This interpretation is not altered by the fact that the employer makes a bed available to the doctors for use during down times.

The Court added that a doctor required to be on-call at a place determined by the employer is subject to greater constraints than a doctor on stand-by and not required to be on the hospital premises. Under these conditions, a doctor required to be available at the place determined by the employer cannot be regarded as being at rest during the periods of on-call duty when he or she is not actually carrying out any professional activity.

The ECJ therefore concluded that the German law which treats as periods of rest periods of on-call duty where an employee is not carrying out any professional activity, and which provides for compensatory arrangements only in respect of periods of actual activity, is contrary to Community law.

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