Working time: how is it defined?

19 April 2024

A recent Supreme Court ruling of 15 March 2024 (ECLI:NL:HR:2024:426) raises the following question: does on-call duty with permanent on-call status for a group of ambulance staff qualify as working time or rest time? The Supreme Court answers this question on the basis of the Working Time Directive (Directive 2023/88/EC) and its interpretation by the Court of Justice of the European Union (CJEU).

What was this case about?

The employer is an ambulance service in Drenthe and Friesland, including on Vlieland, Terschelling and Schiermonnikoog. About 120 employees are employed in the employer’s so-called Wadden Pool. These are employees who also have to do shifts on the Wadden Islands.

An ambulance service has 24/7 availability and accessibility, whereby a national (plan) standard applies. This (plan) standard means that in 92.4% of cases an ambulance must be on site within 15 minutes in case of emergency.

An ambulance service has 24/7 availability and accessibility, with a national (plan) standard applying. This (plan) standard means that an ambulance must be on site within 15 minutes in 92.4% of cases in case of emergency.

The employer in question works on 24-hour shifts. If ambulance staff on the Wadden Islands are not on the road with the ambulance, they may spend the 24-hour shift at home (so-called on-call duty). Ambulance staff must respond immediately when called for a deployment; they must be in the ambulance within two minutes. If they do not achieve this, they must explain why this is the case.

On-call duty is considered rest time by the employer. The employees disagree; during on-call duty, they are in a permanent state of readiness and cannot spend their time freely.

In the first instance, they applied to the subdistrict court for a declaratory ruling that the 24-hour shifts on the Wadden Islands assigned to them qualify as ‘working time’ within the meaning of the Working Time Directive (Directive 2023/88/EC). If so, the employees are entitled to an uninterrupted rest period of at least 11 hours prior to and following their shift

The subdistrict court granted this claim. The court disagrees and rejects this claim. The employees appeal against this.

CJEU case law

The Working Time Directive defines the concepts of ‘working time’ and ‘rest period’. Working time is the time during which the worker is working, at the employer’s disposal and carrying out his work or duties, in accordance with national laws and/or practice. Rest time is the time that is not working time.

The Court of Justice of the European Union (CJEU) has given further interpretation to the concepts of working time and rest time in the Working Time Directive. It follows from the case-law of the CJEU (Radiotelevizija Slovenija) that a period during which the worker does not actually carry out activities for his employer does not necessarily constitute rest time. Under circumstances, a period during which the worker is not required to remain at his place of work, but during which he is required to be permanently available to his employer(a standby duty with permanent accessibility), may qualify as working time. That is the case where an overall assessment of all the circumstances of the case shows that the obligations imposed on the worker are such as to have an objective and significant impact on his ability, during that on-call duty, to freely fill the time during which no professional activity is required of him and devote it to his own interests.1

The CJEU has provided guidance for assessing whether the obligations imposed on the worker are such that his on-call duty with permanent on-call duty should be regarded as working time. In particular, this should take into account (i) the time available to the worker during on-call duty to resume his professional activities from the moment the employer requests it(response time), and, where appropriate, (ii) the average number of interventions the worker is actually required to carry out during on-call duty(the average number of interventions).”2

Supreme Court’s assessment

The Supreme Court deduces from the above-mentioned case-law of the CJEU that ambulance workers’ on-call duty must be regarded as working time, and explains that if the response time – taking into account other obligations imposed on the worker or facilities offered to him during on-call duty – has such an impact in the specific case that the worker is objectively and significantly limited in his ability to freely fill his time during his on-call duty periods, those periods must in principle be regarded in their entirety as working time. A low average number of interventions cannot then detract from this, even if the worker rarely has to intervene.3

  1. CJEU 9 March 2021, ECLI:EU:C2021:182 (Radiotelevizija Slovenija), paragraphs 37 and 66. ↩︎
  2. CJEU 9 March 2021, ECLI:EU:C:2021:182 (Radiotelevizija Slovenija), paragraph 46. ↩︎
  3. HR 15 March 2024, ECLI:NL:HR:2024:426, paragraph 3.2.5. ↩︎