Dancing around with the definition of “working time”. New rulings on on-call time and time spent travelling between the employees’ homes and the premises of the first customer

Written on 30 Oct 2020

The entry into force of numerous legal precepts related to working time and its determination (e.g., time recording or digital disconnection) underlines the urgent need for clear criteria to easily determine what is considered working time and what is resting time.

Despite having both European regulations (Article 2 of Directive 2003/88/EC of the European Parliament and of the Council, of November 4, 2003) and national regulations (Articles 34 to 38 of the Workers' Statute), determining what is considered as working time (and what resting time) requires a detailed analysis of the concurrent circumstances in a particular case. This task is carried out by the Social Courts, which are gradually establishing the criteria applicable to determine when we are dealing with working time. In particular, there are two issues that play a major role in the controversy due to their business implications: on-call time and time spent travelling between the employees’ homes and the premises of the first customer.

The Supreme Court (ruling no. 485/2020, June 18) has ruled on the issue of on-call time, ratifying the criteria that allow us to determine when we are facing working time and when we are not. In this case, the company (which provides consultancy services) signed an "Availability Agreement" with its employees. This agreement, of voluntary subscription for the employees, regulated the performance of on-call guards outside the ordinary working day by those employees interested. During these on-call guards, there could be calls (which require a telephone response) or interventions (which involve remote or on-site operations to meet the needs of the service). These on-call periods were paid for by means of an availability supplement, which remunerated a minimum number of interventions per on-call guard. Interventions that exceed this number were paid separately. Likewise, each hour of intervention was compensated with one hour of rest, which could be accumulated until forming complete days, to be enjoyed within the month following its completion. During the on-call periods, employees were not obliged to stay in any specific place or to attend to the incident in a specific, short period of time from the moment they received the notification.

The employees' representatives filed a lawsuit for collective bargaining, arguing that the on-call time should be considered as effective working time in any case, justifying their claim in the case law of the Court of Justice of the European Union ("CJEU"). Specifically, in the so-called "Matzak Case".

However, the Spanish Supreme Court rejects the application of the doctrine of the Matzak case. This rejection is based on the different concurrent characteristics of each case: in the Matzak case, the employee was required to be at home during the shift, in case any incident occurred that required his intervention, which he was also required to do within a maximum period of eight minutes from the receipt of the notice. None of these circumstances apply in the case analysed by the Supreme Court. Therefore, the Supreme Court establishes that the key to deciding whether on-call time constitutes working time or rest time lies in the fact that on-call time is considered to be working time when it obliges the employee to remain on the premises of the company, or in any other place designated by the employer - including the employee’s own home, to attend the business requirement in a short period of time, and that therefore they develop in conditions that limit their freedom of movement and prevent them from organizing his/her time at will to be able to dedicate themselves to their personal interests and to the free realization of those activities that they consider opportune.

Secondly, the Supreme Court's ruling of July 7, 2020 (no. 605/2020) analyses the nature of the time spent travelling by the employees of a company engaged in the installation, maintenance and repair of elevators from their home to the location of the first client.  In this case, the affected employees go directly to the client's place, with company vehicles, without previously passing through the company's headquarters (despite the fact that the company allowed them to park the vehicle at its facilities). In its ruling, the Spanish Supreme Court applies the doctrine of the CJEU (in the so-called “Tyco Case”), despite the fact that the circumstance’s of both cases are not identical (since, unlike the Tyco Case, in the present case there is a work centre, and the employees have always begun their workday at the customer's home, without first doing so from their work centre). However, the Spanish Supreme Court concludes that, as determined in the Tyco Case, the trips should be considered effective working time, since they are inherent to the performance of the business activity, which could not perform its function if it did not move its workers, materials and tools to the homes of its clients.

The aforementioned rulings contribute to providing legal certainty when it comes to classifying certain activities as working time or rest time, which, with the entry into force of numerous new regulations affecting or linked to working time (among others, the right to digital disconnection or the obligation to record time) has become a matter of radical importance. Unfortunately, this issue admits almost as many solutions as particular cases, so it is essential to analyse in detail the concurrent characteristics in each case.