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Italy: Is the on-called period part of the working time?

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published on 19 April 2021 | reading time approx. 4 minutes

  

With two judgments of 9 March 2021, concerning the cases C-344/19 and C-580/19, the European Court of Justice has once again addressed the topic related to the discipline of the on-call service, stating that a passive on-call period is to be considered as working time only if, from an overall assessment of the case, significant constraints affect the employee’s ability to organize his free time.

  

  

It is therefore necessary to determine how intense and restrictive the constraints imposed by the employer must be to affect the employee's freedom to manage his free time in order to consider the on-call period, during which an employee only must be reachable by telephone and be able to reach his workplace within certain deadlines, as actual working time with the consequences thereof. 

In this context, the European Court of Justice has provided interesting clarifications that will certainly also have an impact on future Italian (and other European countries’) judgments on the matter.

Before specifically examining the two cases in question, the Court generally pointed out, that the on-call period must be qualified, alternatively, as 'working time' or 'rest period' within the meaning of the Directive 2003/88/EC. 

In this context, the Court recalled that the period during which the employee does not carry out effective working activity cannot automatically be regarded as 'rest period'.

In line with previous case law, as set out in the judgment in Case C-518/15 (Ville de Nivelles v. Rudy Matzak), the Court stated that a period of passive on-call period must be classified as 'working time' if the employee is obliged to be present at his workplace or at another place determined by the employer, remaining thereby at the employer's complete and immediate disposal.

In Case C-344/19 (D.J. v. Radiotelevizija Slovenija), a Slovenian worker employed as a specialized technician was obliged to arrive at his workplace – located in a geographical area difficult to reach – within one hour after being called by the employer, and due to the difficulty in accessing the place, the employee had to stay in the accommodation provided by the company, located in an area that did not offer much opportunities for entertainment and leisure pursuits.

In Case C-580/19 (R. J. v. Stadt Offenbach am Main), a German firefighter had to ensure, during on-call periods, his arrival at the place of intervention – which could also be located in the extreme outskirts of the city – with the service vehicle granted to him, within 20 minutes from the call.

Both employees took legal action, claiming that they had been subjected to such excessive constraints during the periods of on-call services to request full payment of their salary as if they had actually carried out their working activity ('working time'), arguing that they had remained at the full and immediate disposal of the employer.

Indeed, in those two cases, the Court stated that on-call time 'does not constitute working time, unless an overall assessment of all the facts of the case (…) establishes that the constraints imposed on the worker during that period are such as to affect, objectively and very significantly, the latter’s ability freely to manage, during the same period, the time during which his or her professional services are not required and to devote that time to his or her own interests'. 

On the other hand, if the constraints imposed on the employee during a period of on-call duty do not reach such a degree of intensity and enable the latter to manage his own free time and undertake activities in his own interests without significant restrictions, only the time connected with the eventual working activity actually carried out during such period constitutes 'working time'.

For this overall assessment, according to the Court, only objective constraints imposed on the employee by law, collective agreement or employer directives are considered relevant, but not constraints resulting from the employee's free choice or any natural circumstances. 

This was the case, for example, with regards to the Slovenian technician where the area, which he could not – in practice – leave during the on-call period, did not offer many possibilities for leisure activities: since this was a natural circumstance of the place, the Court rejected the employee's claim.  

In the light of the above, also with regards to the case of the firefighter, who requested to have his on-call periods considered as working hours, with the relevant right to payment of the corresponding salary, the Court stated that the request was ungrounded, both because of the small number of interventions carried out during the call-on period and because of the period of time available to reach the workplace, i.e. 20 minutes, which was considered reasonable, also in the light of the possibility to use the service vehicle provided by the employer, which benefits from the right of way as an exception to the traffic regulations.

In short, it is up to the national Courts to make an overall assessment of all the circumstances of each specific case in order to determine whether an on-call period can be qualified as 'working time', since such a classification is not automatic in absence of an obligation to remain at the workplace. To that end, on the one hand, it is necessary to consider the period of time available for the employee for resuming his working activities from the moment on when his employer requests his intervention. However, the features of that time-limit must be evaluated in concreto, taking into account not only other constraints which are imposed on the employee, such as the obligation to have specific equipment when arriving at the workplace, but also of the facilities granted to him.

Moreover, the Court of Justice has provided, in this context, a very interesting clarification with reference to the retribution concerning on-call periods: such periods – regardless of whether they are qualified as 'working time' or 'rest periods' – do not fall within the discipline of the Directive 2003/88/EC and can therefore be remunerated in a different way as effective working hours.

However, the Court's ruling does not indicate anything with regards to the issue of the employee's right to compensatory rest periods in the event of being on on-call duty on Sundays and public holidays, which is a matter often discussed in practice.

According to the most recent case law of the Italian Supreme Court, the period of on-call time – without a call to actually perform a working activity – is not qualified as 'working time' and therefore the mere passive on-call period on a public holiday or Sunday would not entitle the employee to a compensatory rest period (e.g. Cass. 11727/2013; Cass. 26723/2014). On the other hand, in the case of active on-call periods the employee would be entitled both to compensation in addition to his normal salary and to a compensatory rest period if the working activities were effectively carried out on the day set out for the weekly rest period (Cass. 18654/2017). The Court of Cassation justifies this distinction by arguing that the period of passive on-call time can only limit the use of the day of rest, but does not exclude it entirely. 

In the light of the above observations on the judgment of the European Court of Justice, this 'sharp' distinction between active and passive on-call time no longer seems entirely up-to-date due to the fact that, according to the Court, even a period of passive on-call service could be classified as 'working time' if there are constraints that affect, in a very significant way, the employee's freedom to manage his leisure time.
As a consequence, if a period of passive on-call service were to be carried out on a day determined for the weekly rest period and if the constraints imposed on the employee were such as to classify this period as 'working time', the employee – in the opinion of the writer – would be entitled to receive a compensatory rest precisely because this 'type' of passive on-call time would exclude the full use of the day of rest. 

Said that, in practice, it is always necessary to make a practical assessment of the concrete case, especially with regards to the intensity of eventual constraints and limitations imposed on the employee during the on-call periods. In order to avoid requests by employees with regards to the use of compensatory rest or claims for damage compensation, it is advisable – as far as possible – to regulate the on-call service with a special agreement, without exceedingly affecting the freedom of the employee to organize his free time, for example by providing a longer time period for the employee to arrive – after the request for his intervention – at the place where the working activity should be performed or the use of instruments that allow the employee to unconditionally dispose of his leisure time (smart-working, etc.).
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