Defining working time versus rest time: An analysis of the recent CJEU case law on stand-by time

Abstract

The article explores the evolution of the CJEU jurisprudence following on from the Matzak case. It provides an analysis of the most recent judgments on stand-by time, including those in case C-344/19 Radiotelevizija Slovenija, case C-580/19 Stadt Offenbach am Main, case C-107/19 Dopravní podnik hl. m. Prahy, and case C-214/20 Dublin City Council. The disputes concerned workers on stand-by duty who were not required to be physically present at the location expressly designated by the employer, but were expected to resume work within a short or very short period of time if necessary. In order to classify stand-by periods as working time or rest periods under the Directive 2003/88, the CJEU analyses whether the constraints imposed on the worker are such as to affect, objectively and very significantly, the possibility for the latter freely to manage the time during which his or her professional services are not required and to pursue his or her own interests. Moreover, the CJEU requires that 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. In the author's opinion, the required response time is a decisive and most important factor in the assessment. If the reaction period is very short, then in principle the stand-by time constitutes working time. Where the situation is not prima facie clear, additional secondary criteria should be taken into account. The factors that fall within the scope of an employer's managerial competences and pertain to an organisation's operational needs, and also the type of work performed by the worker, are relevant in assessing the legal characterisation of a particular stand-by period. The evaluation should not be affected by factors that remain beyond employer's control, e.g., the location of the workplace, the worker's residence, and distance between them.