Working time arrangements: “on-call” & multiple employment with the same employer

This March 2021 has been a busy month for the European Court of Justice (ECJ) since issuing judgements on two key topics relating to the organization of working time, namely on (1) stand-by time according to a stand-by system (more commonly known as “on-call”), and (2) working time of employees having concluded several employment contracts (Romanian, cumul de functii) with the same employer (ECJ ruling for the first time on this topic). These are currently in force and prompting employers to prudently consider their actions to ensure these matters are properly applied in day-to-day performance of their employment relationships and/ or addressed as part of their employment documentation, where the case.

Without intending to provide an exhaustive overview of the relevant changes, a few key points to consider include the following:

I. On-call / stand-by time

What happened?

The question of whether stand-by/ on-call time - namely a period of time during which the employee remains available to his employer, in order to ensure that work is provided, at the employer’s request - actually constitutes working time is not new. This has been examined by the ECJ in several other cases and previous ECJ rulings on the topic predominantly focused on the restriction over the employee’s whereabouts, when the employer required his presence at a specific location (typically the workplace), as key criteria to determine that the respective stand-by time actually constitutes working time.

This new judgement - passed on 9 March 2021 - is more nuanced, seemingly having adapted to the new reality of remote work via IT&C means, when the actual location for performing the work (the workplace at the employer’s premises) may not be as relevant as it once was.

What was the prior standing?

As background, the ECJ reconfirms that:

• the concepts of (1) “working time” (any period during which the employee is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice) and (2) “rest period“ (any period which is not working time) are mutually exclusive, no intermediary category being provided so an employee’s stand-by period must be classified as one or the other;.
• they are concepts of EU law (no local derogations being permitted) with a view to secure an uniform application by all EU member states considering the health and safety aim of limiting maximum working time;.
• as regards stand-by time, a period during which no actual activity is carried out by the employee for the benefit of his employer does not necessarily constitute a “rest period”, an analysis being required. .

As preliminary points, based on its previous case-law, the ECJ reminds that:

• stand-by at the place requested by the employer: for stand-by periods at places of work separate from the employee’s residence (not necessarily the usual workplace), the decisive factor to determine that it falls under “working time” is the requirement for the employee to be physically present at the place determined by the employer and to remain available to the employer in order to be able, if necessary, to provide his services immediately. In this case, the employee must remain apart from his family and social environment and has little freedom to manage the time during which his professional services are not required. Therefore, the whole of that period must be classified as “working time”, irrespective of the professional activity actually carried out by the worker during that period; and.
• stand-by with no location requirement, but with objective & significant constraints: a period of stand-by time according to a stand-by system must also be classified, in its entirety, as “working time”, even if an employee is not required to remain at his workplace, but the constraints imposed on the employee have an objective and significant impact on his opportunities to pursue his personal and social interests. Only constraints imposed by law, collective agreement or by the employer are taken into account for this purpose (not organisational difficulties arising from his own free choice or natural factors etc.). This differs from a period during which an employee is required simply to be at his employer’s disposal inasmuch as it must be possible for the employer to contact him (when the constraints do not reach such a level of intensity and allow him to manage his own time and to pursue his own interests without major restrictions) – in this latter case, only the time linked to the provision of work actually carried out during that period constitutes “working time”.

What’s new?

A. Criteria for classifying stand-by time as working vs. rest time

When there is no requirement to remain at the workplace, a period of stand-by time cannot automatically be classified as “working time”, however, an analysis is still required to determine the consequences of all constraints imposed on the employee over his ability to manage his time and pursue his interests (while his professional services are not required). The result of this analysis will reveal if the stand-by period in its entirety falls under one of the 2 concepts, “working time” or “rest period”. Of course, any incidents triggering the employee to actually perform work will always be deemed “working time”, even if occurring during a stand-by period classified as “rest period”.

The main criteria indicated by ECJ to be examined together are:

1. the response time required by the employer (a few minutes would not be reasonable vs. an hour which could work); and
2. the average frequency of the incidents when the employee is actually called upon to work over the course of the stand-by period and the duration of that work (if called upon to act on numerous occasions during a period of stand-by, he has less scope freely to manage his time during those periods of inactivity, given that they are frequently interrupted; the more so if the work activity is of a non-negligible duration).

These two criteria need to be examined together. For example, even if the employee is rarely called upon to act during the stand-by period, if the response time is short, it suffices to constrain, objectively and very significantly, the ability that he has freely to manage his time when services are not required, thus still leading to the entire period to be deemed “working time”.

B. Health and safety restrictions

The ECJ also emphasises that even if they do not constitute “working time”, services consisting in stand-by time necessarily imply that professional obligations may be imposed on the employee and consequently, to that extent, are a part of their working environment in a broad sense, mandating the employer’s responsibility for that entire stand-by time from a health and safety perspective.

If the stand-by time continues, without a break, over long periods or where it occurs at very frequent intervals, such that they recurrently place a psychological burden, even of a low intensity, on the employee, it may in practice become very difficult for the latter to withdraw fully from his working environment for a sufficient number of consecutive hours, so as to permit him to neutralise the effects of work on his health or safety. That is all the more true where services consisting in stand-by time are provided during the night.

As a result, employers cannot establish periods of stand-by time that are so long or so frequent that they constitute a risk to the safety or health of workers, irrespective of those periods being classified as “rest periods”.

C. Conclusion

There are situations when the stand-by time is automatically deemed in its entirety “working time”. Otherwise, an analysis needs to be done to determine its appropriate classification.

In this ECJ case, the court ruled that when:

• the employee is required only to be contactable by telephone and able to return to his workplace, if necessary, within a time limit of one hour,
• while being able (but not required) to stay in service accommodation made available to him by his employer at that workplace,

the period of stand-by time according to a stand-by system does not automatically constitute, in its entirety, “working time”. This is unless an overall assessment of all the facts of the case, including the consequences of that time limit and, if appropriate, the average frequency of activity during that period, establishes that the constraints imposed on that employee during that period are such as to affect, objectively and very significantly, the latter’s ability to freely manage, during the same period, the time during which his professional services are not required and to devote that time to his own interests.

What next?

Employers with stand-by / on-call systems should consider – when planning and implementing such a system – at least (a) to set-up the system so that it does not automatically lead to the entire stand-by period amounting to “working time” (as otherwise leading to various implications, ranging from exceeding maximum working time limits, not observing the minimum rest periods, overtime compensation etc.) and (b) to not impose for the same employee long and/or frequent stand-by periods, especially during the night, taking into account the health and safety implications.

II. Multiple employment within the same employer

What happened?

This new judgement - passed on 17 March 2021 - hits close to home, the ECJ being called upon ruling on this topic by the Bucharest Tribunal for assessing a claim between Academia de Studii Economice and a specialised organism of the Romanian Ministry of Education.

In short, the main question the ECJ has now responded to for the first time is: “When an employee has concluded several contracts of employment with the same employer, the minimum daily rest period applies to those contracts taken together or to each of those contracts taken separately?”

What’s new?

In the past, some (employers and employees alike) used the absence of an express legal provision limiting the number of employment contracts one individual may to enter into as argument to sustain that it is not prohibited and therefore possible. This lack of legislation on the matter is obvious as no Romanian legal provision has been challenged in this case on the ground that it is incompatible to EU law.

The ECJ now states that when an employee has concluded several contracts of employment with the same employer, the minimum daily rest period applies to those contracts taken as a whole and not to each of them taken separately. As a result, all employment contracts concluded by an employee with his employer must be examined together in order to establish whether the period described as daily rest is actually a period which does not constitute working time under any of the contracts.

The protection afforded by the minimum daily rest period applies per employee, not per contract. This is because:

• the EU working time rules are designed to guarantee better protection of the health & safety of employees by ensuring that they benefit of minimum rest periods – particularly daily (in Romania, as a rule, at least 12 consecutive hours between 2 work days, while under EU rules, at least 11 consecutive hours per 24-hour period) and weekly – and of adequate breaks and by setting a maximum limit on the weekly working time (in Romania, as a rule, maximum 48 hours/week, including overtime); and
• the employee is seen as the weaker party in the employment relationship so this protection prevents the employer from imposing on him a restriction of his rights, for example, by pressuring the employee to split his working time into a number of contracts to avoid overtime payments.

What didn’t happen?

The ECJ did not answer the question regarding the applicability of minimum daily rest period in the situation of an employee having concluded individual employment contracts with several different employers, as inadmissible since not relating to the factual background of the Romanian case grounding this ruling. This is not to say that the above conclusion could not apply in this case as well, it is just that ECJ did not rule on this and so it remains uncharted territory.

It may well be that the conclusion is the same in this scenario as well, however, given the strong opposition from the Romanian Government on this point, arguing that the ECJ’s decision would have a systemic impact on the labour market in Romania since many employees have contracts with several employers, the approach remains to be seen.

What next?

The employers engaging employees under several individual employment contracts need to reassess these arrangements seen as a whole from the perspective of observing all working time-related limitations and employee protections, especially the minimum daily rest period. This is because this interpretation must be applied by the courts to legal relationships arising and established even before the ECJ ruling, as seen to be only an interpretation of the existing EU legislation (more precisely, of Directive 2003/88/EC on certain aspects of the organisation of working time).