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The Court of Justice of the European Union’s (“CJEU”) recent Judgment of March 9, 2021 in Case C-344-19 includes the important caveat that, even if a stand-by period is classified as a “rest period” (for the application of Directive 2003/88 on organization of working time), this does not exclude the company’s duty to comply with its specific obligations under Directive 89/391 on workers’ safety and health at work. Therefore, even if the person is not considered to be working during the stand-by time, the duty of protection against certain risks falls on the company.

The classification of stand-by time depends on whether the constraints imposed on the workers, aside from those relating to the nature of their jobs, are such as to objectively and significantly affect their ability to freely manage their time during those periods (during which their professional services are not required) to pursue their own interests.

Therefore, when the obligations during the stand-by time do not reach such a degree of intensity and allow workers to manage their time and pursue their own interests without major constraints, or the constrains relate to the nature of the job or the distance from leisure opportunities and family, an issue that must be resolved by the national courts, those stand-by hours are not considered working time.

However, the significant point of this Judgment is that, even if the stand-by time is classified as a “rest period,” the Court warns that this does not mean the company can ignore that time from a preventive viewpoint. The Court offered the following arguments:

  • First, Directive 89/391 on safety and health of workers at work fully applies to minimum daily and weekly rest periods and the maximum duration of the working week.
  • Second, that Directive establishes that companies are required to assess and prevent risks to workers’ health and safety related to their working environment, stand-by time included (in a broad sense), as they presuppose that professional obligations may be imposed on the worker.

These working environment risks include some psychosocial risks, such as stress and burnout, that the Court associates with stand-by time services. Specifically, the Court believes that, when those services are provided continuously over long periods or occur (with work actually being done) at very frequent intervals, they entail a recurrent psychological risk factor for the worker, albeit low intensity, as, in practice, it can be very difficult to fully withdraw from work for a sufficient number of consecutive hours to allow the workers to neutralize the effects on their safety or health. This is particularly true when this stand-by time is at night.

Taking all this into account, since companies are required to protect their workers against the psychosocial risks that can arise in their working environment, the Court believes that they cannot introduce stand-by periods so long or frequent that they constitute a risk to workers’ safety or health, regardless of whether those periods are classified as “rest periods.”

The CJEU incidentally offers some guidelines to determine when stand-by time can be considered a greater psychosocial risk factor. Specifically, it states that special attention must be paid to the following factors:

  1. The period available to the workers during their stand-by time to return to their professional activities, from the time the employer requires their services. Aside from the fact that it can lead the whole period to be considered working time, a stand-by period during which the worker has little time to return to work undoubtedly involves a greater psychosocial risk factor.
  • As well as influencing their classification as working time, the average frequency of the activities that the worker is actually called upon to perform during each stand-by period must also be taken into account when assessing psychosocial risks.

Ultimately, through their prevention services, companies must assess the risks to the health and safety of workers in stand-by periods and adopt all the preventive and corrective measures required, taking into account at least the interpretation criteria and factors defined by the CJEU.

The result of this assessment could entail the need to introduce organizational changes or reinforce stand-by staff to prevent psychosocial risks. On the contrary, work accidents and professional diseases could occur that could give rise to sanctions, benefit surcharges and civil liability compensation.

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Abogado asociado de Laboral en Cuatrecasas. Profesor Asociado de la Universidad Loyola Andalucía.