Constant availability of employees is complex under labor law. The Federal Labor Court (Judgment of August 23, 2023 – 5 AZR 349/22) now decided that an employee can be obliged to perform the working hours assigned to him during his free time and reading the corresponding notice does not constitute working time within the meaning of Working Hours Act (ArbZG) must represent. The ruling should nevertheless prompt employers to assess the need for communication with employees during non-duty times in individual cases, to raise the workforce’s sensitivity to working time principles and to check their own working time compliance.
facts
The plaintiff is employed by the defendant as an emergency paramedic. According to company regulations, the defendant can assign the plaintiff to Springer services at short notice during periods known to both parties. The plaintiff must be informed of the assignment to jumper duty by 8:00 p.m. the previous day. In two cases, the plaintiff did not receive a timely SMS message from the defendant in his free time and did not show up for Springer services or showed up late. The defendant deducted the absences from the plaintiff’s working time account and issued a warning. The plaintiff filed a lawsuit for the deducted working hours to be credited and the warning to be removed from the personnel file.
Decision
Given the digitalization of the world of work, it is technically possible for employers to reach employees at all times. However, the compatibility with occupational safety and working time regulations is problematic. The law basically stipulates a daily working time of eight hours (§§ 2 Abs. 1,3 ArbZG) with an uninterrupted rest period of eleven hours (§ 5 Abs. 1 ArbZG) before. An interruption of the rest period due to work results, among other things, in the rest period having to be granted in full again. Whether the rest period is also interrupted by minor activities such as reading the news is generally and extremely controversial in the present case.
The Schleswig-Holstein State Labor Court (Judgment of September 27, 2022 – 1 Sa 39 öD/22) proved the plaintiff right: The plaintiff was not obliged to take note of a text message from the defendant about scheduled services in his free time. Accessing and reading the SMS is a work performance and interrupts the plaintiff’s free time. The plaintiff does not have to be available to the defendant in his free time (right to be unavailable). He is free to decide who he wants to be available to during this time.
The Federal Labor Court ruled in favor of the defendant: The working time account should not be corrected and the warning remains in effect. The plaintiff has a duty to take note of the announcement of upcoming services in his free time. Due to the company regulations for the division of services, the plaintiff must expect to be notified of assigned Springer services in the periods known to him in advance, even outside of working hours (until 8:00 p.m. of the previous day). The rest period is not interrupted simply by briefly accessing and reading the SMS. The plaintiff is not significantly restricted in his leisure activities.
Practical notes
The Federal Labor Court’s decision shows that employees do not per se have a right to be unavailable in their free time. Nevertheless, employers should check the legality of making contact outside of working hours on a case-by-case basis. While a brief notification of organizational measures seems permissible, significant interruptions to the rest period can sometimes result in fines and the possibility of criminal liability (§§ 22.23 ArbZG) threaten.
Individual countries already require employers to take measures to regulate the permanent availability of their employees (see “Right to switch off” in France). Employers in Germany should raise their employees’ sensitivity to their work-life balance in order to prevent legal violations. This could be done, for example, through guidelines on the use of company communication media during free time or training on the differentiation between working and rest times (keyword: travel time as working time).
In view of current developments, an analysis and possibly adjustment of working time compliance in the company may be advisable. As a result of the finding of the Federal Labor Court (Resolution of September 13, 2022 – 1 ABR 22/21) of an obligation to record working hours, the Federal Ministry of Labor and Social Affairs presented a draft bill regarding working time recording in April 2023. The legislative process is ongoing and indicates an increasing need for employers to take action in regulating working hours.
Our newsletters
Subscribe to the HR press review, the HR scene or the HRM job market and be the first to find out everything about the latest HR topics and the HR job market.
2024-01-08 11:15:09
#inaccessible #free #time
