Latvian and EU courts clarify the ‘working time’ scope of ‘on-call’ employees

The Latvian Labour Law does not provide special provisions for on-call employees or employees who start performing work duties after the employer’s call. Therefore, in the past, at least in the context of Latvia, there were doubts as to whether or not the employer is obliged to pay the employee also for the time when he or she is not yet performing his main work duties, however, is available and waiting for the employer's call without being at work. In 2020, the Senate of the Republic of Latvia (the “Senate”) clarified this issue, and most recently – on March 9, 2021 – the Court of Justice of the European Union (the “CJEU”) provided additional guidance on the division of work and rest time for on-call employees.

In its judgment issued during 2020, the Senate, following the case-law of the CJEU, determined how the working time and rest time of such employees should be calculated. According to the judgment, two situations can be distinguished. On-call time, on the one hand, means the employee is at a place designated by the employer and is available to the employer so that the employee can immediately provide the relevant services if necessary. Standby time, on the other hand, means that the employee must be reachable, but the employee can organize his time in a less restrictive way and dedicate it to their own interests.

In the case of on-call time, working time is defined as the entire period during which the employee is at the employer's disposal, regardless of whether the employee is waiting for the call or responding to it by providing his main duties. For example, in the same case, it was recognized the whole on-call time of municipal police officers should be considered as working time, as they have a duty to patrol the territory of the particular municipality and to respond immediately to calls even during a break. However, in case of standby time, only the time related to the actual performance of work duties will be considered as working time. This would be the case, for example, when a doctor is on home call duty – he or she must be available in the event of an emergency and has to arrive at the hospital at a certain time, however, he or she can use the time until the call relatively freely.

In its judgment of March 9, 2021 the CJEU clarified only the restrictions imposed on the employee by law or collective agreement or by the employer should be taken into account when determining the boundary between working and rest time. The organizational difficulties which standby time may cause to an employee and which do not result from such restrictions, but which are, for example, the result of natural circumstances or his/her free choice cannot be taken into account. For example, the fact that the employee chooses to live far from the place of work, where he or she must manage to arrive after a call, is not a restriction. The employer is also not responsible for the absence of any entertainment options for the employee in the area where he must stay during his or her duty. However, the CJEU also emphasized, in any case, the distinction between working time and rest time should be based on an assessment of all circumstances (in particular, the frequency of calls and the response time) and it has to be determined whether the worker is not so severely restricted that it affects his ability to freely use his time before calls.

If the employer intends to employ the employee in part or in full, on the standby time system and pay only for the actual time of provision of services, the provisions on working time must be included in the employment contract as precisely as possible. First of all, those days and times when the employee must be reachable and ready to start work at a certain time after the employer's invitation must be specified. In addition, in order to avoid disagreement, it is advisable to indicate in the employment contract which period is to be considered as working time, the wording of which can be as follows:

The employee's working time is the period of time from the moment when the employee starts work (indicate here the specific work that the employee performs) until the time when the employee stops performing work. The time until the call (hereinafter – the “Standby time”) and the time from the receipt of the call until the commencement of work is not working time, but rest time. The employee does not have to be at the workplace before the call.

It is also advisable, for the sake of clarity, to include in the contract along with provisions on remuneration a provision stating the employee is not entitled to remuneration for the time before the work is performed, including for Standby time and for the time between receiving the call and starting work.

Of course, the employer is not precluded from including more favourable terms to the employee in the employment contract, such as paying the employee a small fee for the standby time or for the time when the employee goes to work after receiving the call. The favourable terms may also be laid down in another document (such as an order) issued by the employer and presented to the employee. In this way, the employer provides itself with the opportunity to unilaterally review the amount and cost of the employee's additional remuneration, similarly as in the case of bonuses.

If the employer finds he employs the employee on standby time system or wishes to do so, but the employment contract does not provide the above-mentioned rules on the division of working and rest time, it is recommended that the employer prepare amendments to the employment contract in a separate annex or a new version of the employment contract, including the said provisions. It should be noted, however, an employment contract may be amended (or a new version can be signed) only by mutual agreement between the employee and the employer. At the same time, it must be considered that the rules on the division of working and rest time in case of standby time follow from the law. Thus, unless the employment contract provides more favourable terms and unless the employer has already started paying the employee for the time before the call, the employer can continue to pay the employee only for the actual work, even without amending the employment contract.

by Katrīna Eimane, Associate, Latvia

Team

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