Working Time: ECJ Rules on Status of On-Call Working

In September 2003 the European Court of Justice (ECJ) gave an important ruling on the status of time 'on-call' (Landeshauptstadt Kiel v Jaeger). The case, referred by the German courts, concerned a hospital doctor who was required to spend a certain part of the day on-call and was allocated a room with a bed in the hospital to be available to deal with emergencies. Under German law, 'on-call service' (where an employee is obliged to be present at a place determined by the employer and to keep himself available to answer a call, even if he can rest or occupy his time as he wishes while his services are not required) and 'standby service' (where an employee can be where he likes, as long as he is contactable and can be called upon at short notice to perform duties) are deemed not to constitute 'working time'.

The ECJ held that all on-call duty performed by a doctor required to be present in a hospital constitutes 'working time' for the purposes of the Working Time Directive. This will be the case even where the doctor sleeps at the hospital when his services are not required, and periods of sleep or inactivity do not amount to rest periods. The ECJ noted that, in contrast to a doctor on standby, a doctor who is required to keep himself available at a place determined by his employer during on-call duty is subject to

"appreciably greater constraints, since he has to remain apart from his family and social environment and has less freedom to manage the time during which his professional services are not required. Under those conditions an employee available at the place determined by the employer cannot be regarded as being at rest during the periods of his on-call duty when he is not actually carrying on any professional activity."

This follows, but develops, a 2000 ECJ ruling concerning the on-call duties of doctors in Spain.

While the case concerned German law and the health sector, it is of wider significance as an interpretation of the Working Time Directive. It remains to be seen how the ECJ ruling is applied elsewhere in Europe. It is, however, of potentially broad application. If 'working time' is any period where the employee is required to be at a place determined by the employer to be available for duties, this could cover any situation where he or she is at his or her employer's disposal and away from home - for example a business trip.

For further information on this topic please contact Mark Mansell or Felicity Gemson at Allen & Overy by telephone (+44 20 7330 3000) or by fax (+44 20 7330 9999) or by email (mark.mansell@allenovery.com or felicity.gemson@allenovery.com).