Labour law decisions around Corona

No face shield instead of mouth-nose shield

A flight safety assistant wanted to wear a face shield at her workplace at the airport instead of a mouth-nose shield (MNS), as provided by her employer. She argued that she could not be expected to wear an MNS for health reasons.

The court ruled in favour of the employer in the injunction proceedings. The employer was obliged to protect employees as well as airport visitors from the Corona virus. An MNS provided better protection than a face visor. The woman had not been able to credibly show that she could not wear an MNS for health reasons.

ArbG Berlin, judgment of 15 October 2020 – 42 Ga 13034/20

At least face visor for activities with public traffic

The Siegburg Labour Court ruled similarly. In this case, the worker, who worked in a city hall, had also refused to wear a face visor and had submitted a medical certificate to that effect.

However, the man could not avoid a face visor. The employer’s right to issue instructions also extended to the protective measures required by occupational health and safety regulations, the court explained. He could and must therefore implement the obligation to wear a face mask in the workplace through his right to issue directives. In view of the public traffic and the employees working in the building, he had a considerable interest in ensuring that no one moved around in the town hall without wearing a mouth-nose covering or face visor. The employer had rightly instructed the employee to wear at least a face visor outside his own office.

ArbG Siegburg, Urt. v. 16.12.2020 – 4 Ga 18/20

Home office instead of notice of change

The company had given the long-time employee notice to change her job. Among other things, the company planned to close the Berlin site and offered the woman the opportunity to work at the Wuppertal headquarters. She considered the dismissal to be socially unjustified. Even if the employer were to close five branches, including the one in Berlin, as claimed, she would have the option of working at home.

The court found in favour of the woman. It was her employer’s business decision to close the Berlin site. However, when it came to the concrete consequences, the employer had to limit itself to the mildest means. In this case, that means was working from home.

Working at home through electronic mediation was already quite common in the company. In view of the now much greater “spread of electronic working from home due to the Corona crisis, the defendant’s conduct appears to be out of date and ultimately arbitrary”.

An appeal against the decision was lodged with the Berlin-Brandenburg Regional Labour Court.

ArbG Berlin, Urt. v. 10.08.2020 – 19 Ca 13189/19

Teacher must teach

A teacher’s urgent application not to have to give face-to-face lessons was unsuccessful. The man teaches at a vocational school with remedial classes. The 62-year-old was of the opinion that the health risk was too high for him.

The schools had discretionary powers on how to deal with the dangers of the Corona pandemic, the court said. It was not the task of the courts to decide in advance which teacher could be deployed and how. The teacher had argued that there was no interest in his presence teaching. The judges could not understand this, as he gave remedial classes to disadvantaged pupils. These pupils did not usually come from academic households where they had easy access to the internet and support from their parents.

ArbG Mainz, Urt. v. 10.06.2020 – 4 Ga 10/20

Source: DAV press release dated 19.03.2021

Maximum working time in the case of several contracts with the same employer

If an employee has concluded several employment contracts with the same employer, the minimum daily rest period applies to the contracts taken together and not to each of the contracts individually.

The Academia de Studii Economice din Bucureşti (ASE) (Academy of Economic Studies Bucharest, Romania) received non-repayable European funding granted by the Romanian authorities for the implementation of a sectoral operational programme (the POSDRU/89/1.5/S/59184 project) on human resources development entitled ‘Performance and excellence in postdoctoral research in economics in Romania’. On 4 June 2018, the Ministerul Educaţiei Naţionale (Ministry of Education, Romania) charged ASE with a budget claim of 13 490.42 Romanian lei (RON) (approximately 2 800 euros), which corresponded to salary costs for workers in the working group implementing the project. The amounts corresponding to these costs were declared ineligible because the maximum number of hours (13 hours) that these workers can work per day had been exceeded.
Indeed, in the period from October 2012 to January 2013, experts employed by ASE had, on the basis of several employment contracts, cumulated on certain days the hours worked within the framework of the standard working hours, i.e. 8 hours per day, with the hours worked within the framework of the project or within the framework of other projects or activities. The total number of hours worked per day for these experts exceeded the limit of 13 hours per day provided for in the instructions of the authority managing the project.
The Tribunalul Bucureşti (Bucharest Regional Court),
before which the case was brought, asks the Court of Justice whether, where a worker has concluded several contracts of employment with the same employer, the minimum daily rest period provided for in Article 3 of the Working Time Directive 2003/88/EC (OJ 2003 L 299, p. 9) applies to those contracts taken together or to each of them taken individually.

In its judgment of today, the Court points out, first, that the right of every worker to limitation of maximum working hours and to rest periods, in particular daily rest periods, is not only a rule of European Union social law of particular importance but is also expressly guaranteed by the Charter of Fundamental Rights of the European Union (Article 31(2)).

The Court states in this regard that the Working Time Directive (Art. 2 No. 1 and Art. 3 of the Working Time Directive) defines the term “working time” as any period during which a worker works, is at the employer’s disposal and carries out his activity or duties. It obliges Member States to take the necessary measures to ensure that “every worker” is granted a minimum rest period of eleven consecutive hours per 24-hour period.

Moreover, “rest period” is defined as any period outside working time. “Rest time” and “working time” are thus mutually exclusive concepts and the Working Time Directive does not provide for an intermediate category between working time and rest time.

However, the requirement of the Working Time Directive that each worker be granted at least eleven consecutive hours of rest per day cannot be met if these rest periods are examined separately for each contract between the worker and his employer.

In such a case, the hours regarded as rest periods under one contract could in fact constitute working hours under another contract, as in the case before the Court. However, since the same period cannot be classified as working time and rest period at the same time, the contracts of employment concluded by an employee with his employer must consequently be examined together.

This interpretation is also confirmed by the objective of the Directive, which is to lay down minimum requirements designed to improve workers’ living and working conditions, in particular by approximating national provisions on working time. This objective is intended to ensure better protection of workers’ health and safety by granting them minimum rest periods, including daily rest periods.

The Court therefore considers that where a worker has concluded several contracts of employment with the same employer, the minimum daily rest period applies to those contracts taken together and not to each of them individually.

Source: ECJ Press Release No. 41/2021 v. 17.03.2021

Is on-call time considered working time?

Stand-by time in the form of on-call duty only constitutes working time in its entirety if the restrictions imposed on the employee quite significantly impair his or her ability to organise his or her free time during this time.

Organisational difficulties that on-call time may cause for the employee as a result of natural circumstances or the employee’s free decision are irrelevant.

In Case C-344/19, a specialised technician was entrusted with ensuring the operation of television transmission equipment in the Slovenian mountains for several consecutive days. In addition to his twelve hours of regular working time, he performed six hours of on-call duty per day. During these periods, he was not obliged to stay at the broadcasting facility in question, but had to be reachable by telephone and able to return there within one hour if necessary. De facto, given the geographical location of the transmitting stations, which were difficult to access, he was forced to stay in duty accommodation provided by his employer during his on-call duties without much leisure time.

In Case C-580/19, a civil servant worked as a firefighter in the city of Offenbach am Main (Germany). In addition to his regular duty hours, he was regularly required to work on-call hours. During these periods, he was not obliged to stay at a place designated by his employer, but had to be reachable and able to reach the city limits within 20 minutes in his duty uniform and with the emergency vehicle provided to him in the event of an alarm.

The two persons concerned were of the opinion that their on-call times should be fully recognised as working time due to the restrictions associated with them and should be remunerated accordingly, regardless of whether they actually worked during these times. The first person concerned appealed to the Vrhovno sodišče (Supreme Court, Slovenia) after his claim had been dismissed at first and second instance. The second person concerned brought an action before the Darmstadt Administrative Court (Germany) after his employer did not comply with his request.

The Court of Justice, which is seised of two references for preliminary rulings from these courts, clarifies in particular in two judgments of the Grand Chamber the extent to which on-call time is to be classified as “working time” or as “rest time” within the meaning of Directive 2003/88 (Art. 2 No. 1 of Directive 2003/88/EC – OJ 2003 L 299, 9).

Assessment by the Court of Justice

By way of introduction, the Court points out that a worker’s time on call must be classified either as ‘working time’ or as ‘rest time’ within the meaning of Directive 2003/88, since the two concepts are mutually exclusive. Moreover, a period during which a worker does not actually carry out any activity for his employer does not necessarily constitute a ‘rest period’.

In particular, it follows from the case-law of the Court of Justice that a period of on-call time is automatically to be classified as ‘working time’ if, during that period, the worker is obliged to remain at his place of work, which is not identical to his home, and to make himself available there to his employer.

Following those clarifications, the Court rules, first, that periods of on-call time, including periods in the form of on-call time, are covered in their entirety by the concept of ‘working time’ even if, objectively speaking, the restrictions imposed on the worker during those periods quite significantly affect his ability to organise freely and devote to his own interests the time during which his professional services are not required. Conversely, if there are no such restrictions, only the time associated with the work actually performed, if any, during such periods of on-call time shall be regarded as “working time”.

In that regard, the Court points out that only restrictions imposed on the worker by national legislation, by a collective agreement or by his employer can be taken into account when assessing whether on-call time constitutes ‘working time’. In contrast, organisational difficulties that on-call time may cause for the worker as a result of natural circumstances or the worker’s free choice are irrelevant. This is the case, for example, if the area which the worker practically cannot leave during on-call time offers few opportunities for leisure activities.

Furthermore, the Court emphasises that it is for the national courts to carry out an overall assessment of all the circumstances of the case in order to determine whether on-call time is to be classified as ‘working time’, since that is not automatically the case where there is no obligation to remain at the workplace. To this end, it is necessary to consider, on the one hand, the appropriateness of the time limit within which the worker must start work after being called upon to do so by his employer, for which he must normally go to his place of work. However, the consequences of such a time limit must be assessed on the basis of the specific case, taking into account not only other restrictions imposed on the worker, such as the obligation to appear at the workplace with special equipment, but also facilitations granted to him. Such facilities may, for example, consist of the provision of a company vehicle with which special rights in relation to the road traffic regulations can be exercised. On the other hand, national courts must take into account the average frequency of the work performed by a worker during his periods of on-call time, provided that an objective estimate can be made in this respect.

Second, the Court holds that the manner in which workers are remunerated for time spent on call is not subject to Directive 2003/88. It therefore does not preclude the application of national legislation, a collective agreement or a decision of the employer under which periods during which actual work is carried out and periods during which no actual work is carried out are taken into account in a different manner for the purposes of remuneration, even if those periods are to be regarded in their entirety as ‘working time’. Conversely, it is also not contrary to Directive 2003/88 for periods of on-call time which cannot be classified as ‘working time’ to be remunerated in the form of payment of an amount intended to compensate for the inconvenience caused to the worker by them.

Third, the Court states that the classification of on-call time which is not to be regarded as ‘working time’ as ‘rest time’ is without prejudice to the specific obligations incumbent on employers under Directive 89/391 (Articles 5 and 6 of Directive 89/391/EEC – OJ 1989 L 183, 1). In particular, employers may not introduce periods of on-call time which are so long or so frequent that they constitute a risk to the safety or health of workers, irrespective of whether they are to be classified as “rest periods” within the meaning of Directive 2003/88.

Source: ECJ Press Release No. 35/2021 v. 09.03.2021