Periods of stand-by time: working time or rest periods?

Legal Eubdate
7 May 2021

In two judgments dated 9 March 2021, the European Court of Justice provides criteria to determine the employment law treatment of stand-by time. A perfect moment to evaluate the rules and practices regarding stand-by time (regardless of its name or content) in your company!

The Court of Justice is explicit: stand-by time is either working time or a rest period; Directive 2003/88/EC leaves no room for an intermediate category. Correct classification is essential because of the important consequences for working time regulations, such as minimum and maximum working time limits, minimum rest periods and remuneration.

The Court confirms that stand-by time during which the worker must be present at the workplace and available to provide services immediately is classed entirely as working time.

According to the Court, other periods of stand-by time are only entirely working time if an overall assessment of all circumstances demonstrates obligations imposed on the worker which objectively and significantly restrict the worker’s freedom to organise his/her time and pursue his/her own interests during these periods.

The Court then provides the following more specific criteria:

  • Only obligations imposed on the worker are relevant. Organisational difficulties due to natural factors (such as a distant workplace) or the worker’s free choice (e.g. due to the distance between home and workplace) are irrelevant;
  • The response time available to the worker, the obligations (such as a requirement to stay at home or the availability of specific equipment), and the facilities (such as a service car, with or without priority rights or requests which do not involve travel); and
  • The average frequency and duration of actual interventions.

As regards the remuneration of stand-by time, the Court refers to the national legislation. It confirms, however, the possibility of different remuneration rates for periods with and without actual performance and the possibility of remuneration for rest periods.

Unfortunately, Belgian law is not very clear on the remuneration of stand-by time:

  • Actual performance during stand-by time must, of course, be remunerated at the normal remuneration rate (plus an overtime surcharge, if applicable).
  • Periods of stand-by time without actual performance may be remunerated differently, provided that existing sources of law are respected. For example, sectoral CLAs often stipulate an hourly remuneration rate for working time, without distinguishing between working time with or without actual performance. Moreover, the right to an overtime surcharge is linked to the classification as working time.
  • For stand-by time which is classed as a rest period, a separate arrangement can be put in place within the company, but this must not conflict with any sectoral CLA.

Finally, every employer must also pay attention to the well-being risks of stand-by time. Excessively long or frequent stand-by times are therefore not possible, even if they are classed as a rest period.

The judgments of the Court of Justice provide momentum for documenting, evaluating and – where necessary – adjusting arrangements regarding stand-by time in terms of working time rules, remuneration and well-being.