Time spent “on call”

Working hours can include time on-call, provided that the employee has to remain on the employer’s premises, even if s/he is not obliged to work. It is only when someone is on call but not required on the premises, that hours on call are not counted. In Sindicato de Medicos v Consumo de la Generalidad [2000] IRLR 845, doctors were on call at a health centre during their period of duty. They were not permitted to leave, although they could read, watch TV, rest or sleep. The European Court of Justice (ECJ) held that this time must be considered entirely as working time.

In a similar ruling, the ECJ held that a doctor who slept at the hospital and who rarely spent more than half of the time on call actually working could include all of that time as working time. This meant he was entitled to compensatory periods of time off immediately following the time on call (Landeshauptstadt v Jaeger [2003] IRLR 804). These rulings were later upheld in a further important ECJ decision, Abdelkader Dellas and others v Premier Ministre (Case C-14/04).

In response to these rulings, employers have been arguing for a change to the Directive. Employers want to introduce a concept described as “inactive on-call time”, in which time spent by a worker when on call at the workplace but not required to carry out duties would not be regarded as working time unless otherwise agreed. Unions have strongly resisted such a move, and in March 2011, at the end of the second review phase, the European Commission indicated an intention to abandon the concept of “active and passive” on call time, a development described by the ETUC as a “step forward”.

In November 2011, Business Europe, the body representing employers and employer federations in the negotiations, issued a policy briefing in which it identified as a key priority that “on-call work should not be considered as working time”.

The ETUC continues to argue for these favourable ECJ decisions on “on call” time to be written directly into the Working Time Directive through an amendment of the text, to strengthen the position of workers, especially vulnerable workers who lack effective collective representation. Negotiations between the European Trade Union Confederation (ETUC) and Business Europe on a revision to the European Working Time Directive, including the definition of “on call” time, took place throughout 2012 but failed to reach agreement.