On-call duty in labor law

Labor law for employers and employees

On-call duty in labor law

Law office BAUMFALK in Kerpen-Horrem and Witten

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There are different types of working time. One of them is on-call duty. In case of an agreed on-call duty, the employee has to be at a place determined by the employer either within or outside his working hours. The purpose of this is that the employee is on call and could start work without hesitation when it is needed. In another way, on-call duty could also be described as a restriction of stay, which is compulsorily accompanied by the obligation to take action when needed. 

The difference between on-call duty and on-call duty is that employees on on-call duty may stay at a place of their choice in order to work from there. This is not the case with on-call duty. In particular, it must be noted that the employee is only active during his on-call duty if requested to do so. He does not have his own readiness to work in this respect. Until then, the age up to which on-call duty must be performed is undefined. 

Thus, the legislator has not set any binding age limits. The situation is different for trainees and minors. On-call duty as a trainee is always problematic if it does not serve the purpose of training. Accordingly, the employer must always ensure that the on-call duty has a certain meaning and purpose for the trainee. Likewise, in the normal case, the trainee must not manage the duty alone. A trainer is therefore required to supervise and guide the trainee.

The following areas in particular are frequently expected to be on-call:

  • Public safety and order such as fire department and disaster control or police

  • Judges and prosecutors

  • Medical sector such as pharmacies, doctors but also pastoral care and psychological emergency service

  • Waste Management

  • Security services

  • Energy supplier

  • IT industry, especially in the field of computer security.

Since 01.01.2004, on-call duty has officially been part of working time within the meaning of § 2 I ArbZG. Thus, the basic working time limits also apply here, which is why the statutory rest breaks must also be observed in this case. It is often problematic that on-call duty is agreed between the employer and the employee within an employment relationship, but the requirements for this are not even met. Even if it is in the name indeed a call readiness, then an on-call duty was agreed upon, because the place of stay cannot be freely selected by the employee due to a too short period of time. Often a time of 20 to 8 minutes applies, which an employee may need then to work. This time is consequently set too short to be able to speak of a free determinability of the whereabouts of the employee so that this can be considered as on-call duty.

The possibility of obligating on-call duty is not excluded in principle. However, this requires a contractual or collectively agreed basis. However, the maximum working time limit, which may not be exceeded, must also be observed here. Nevertheless, the employer still has the chance to choose whether the on-call duty of the employee is to be treated as such or as overtime or on-call duty after the actual working hours and before the start of the next day. It is important to note that if the working hours are extended to 10 hours in one day, the working hours must be compensated. However, it is still important that the employee's activity is different even if the terms above are concretely compared. Accordingly, the employer must make it clear when it is on-call duty, on-call duty, overtime or his normal working hours. 

If a difference is not exceedingly clear, then the agreement on on-call duty is invalid. As an example, one can mention that an employee has a shift of 10 hours. During this time, however, he is supposed to perform an hour of on-call duty in between, which would stretch the working time to more than ten hours. However, since in the specific case it is not expected that his activity will change during the on-call time (he remains at the same place and continues to work normally), this agreement on on-call time is invalid. For general effectiveness, however, as before, an employment contract agreement or at least the consent of the employee per se.

The employee also does not necessarily have a claim to on-call duty. If, however, an employer proceeds in such a way in his company practice that on-call duty is not unusual, an entitlement could again arise from this. Then the employer must make use of his option to distribute the on-call time to all employees and may not exclude a certain group or employees from the on-call time from the beginning.

In principle, the employee is also entitled to remuneration for the time he spends on standby duty due to this special type of work performance. Thus, the remuneration is governed by the application of the § 611 a I BGB. However, the employee is not entitled to his normal remuneration. Thus, in the normal case, the employer and the employee always reach a separate agreement on the remuneration during on-call duty. Thus, either the agreement is that there can be more money for the employee or even less money compared to his other remuneration. Usually, however, a lower remuneration is agreed, which in turn must be appropriate. 

However, the minimum wage must not be undercut. At least this must be paid to the employee, because this does not differentiate according to the type of activity of the employee. However, if such an agreement has not been made, the employee is entitled to his usual wage in the amount set. It often happens that the employee is also classified in a certain wage group due to their working hours. In this case, since on-call time is considered normal working time, it must also be included in its scope.

In principle, it is also possible for the employer to allow the employee to take time off in lieu. In this way, the working time does not have to be compensated in money but by a paid time off in a fair way. The compensatory time off then takes place during the statutory rest period. However, if the employee is ever deployed in violation of the EU Working Time Directive, there is no entitlement to compensatory time off. According to current case law, however, the Federal Labor Court will not be able to uphold this, at least not in the case of a public employment relationship. In this regard, a ruling was already made in 2011, whereby a firefighter was awarded a claim for damages because he worked 54 hours a week instead of the normal 48. The claim for damages was asserted through compensatory time off. This is because on-call time must be fully taken into account in the normal working hours.

The employee may normally organize and use his time within the on-call time as well as during the on-call time in which he is not active freely and according to his personal will. However, he must adhere to the rules that have been imposed on him for the possible commencement of work. For example, he must abide by a general ban on alcohol during the period of readiness. It should be noted, however, that the employee is insured against any occupational accidents during on-call duty as long as he is not pursuing his own economic interest. It does not matter whether he is in his home or elsewhere. It is important that the place of on-call duty coincides with the place determined by the employer. The insurance coverage does not expire at that moment. For accidents at work, which occur on the way between the place of stay and the place of work, the general principles about the commuting accident apply.

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On-call duty in labor law

Law office BAUMFALK in Kerpen-Horrem and Witten

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