EU: intensity of constraints imposed by an employer must allow for a distinction between working time and rest time during a period of on-call duty (opinion of CJEU Advocate General)

The cases (C-344/19 and C 580/19) are yet to be ruled on but Giovanni Pitruzzella, Advocate General at the Court of Justice of the EU, has proposed to the court that a new criterion should be created, in order to classify on-call time as either working time or rest time. This criterion is the intensity of the constraints resulting from the worker’s need to adhere to the employer’s instructions. In detail, this means that in cases where the worker has a short amount of time to react to a call, but not to the extent whereby the worker’s freedom to choose the place where they spend the on-call period is completely hindered, additional factors, to be assessed as a whole, may be taken into consideration. Such factors include, for example, the worker’s room for manoeuvre when responding to a call, the expected consequences in the event of late or failed response to a call, the need to wear technical work clothing, the availability of a service vehicle to go to the place where the work must take place, the time and duration of the on-call period, the probable frequency of interventions. As such, in the instance of one of the cases, periods of on-call duty carried out by a firefighter required to be able to reach a scene within 20 minutes – a reaction time which is not inordinately short, but is obviously insufficient to guarantee effective rest for the worker – in work clothes and in their emergency response vehicle, at the limits of their town of assignment, even without a specific location constraint imposed by the employer, could be qualified as “working time”. On the other hand, in the Advocate General’s view, the fact a worker is required to be in a certain place because the geographical location of the workplace (in this case, a specialised technician at a transmission centre) makes it impossible (or more difficult) for them to return home on a daily basis, does not affect the legal classification of the period of on-call duty, even though the possibility of “carrying out recreational activities is limited due to the geographical characteristics of the place and the worker is more limited in managing their time and pursuing their own interests (than if they were staying at home)”.