New Supreme Court ruling on localised guards

The Supreme Court reiterates that working time is not the time spent in a localised on-call system that allows the worker to dispose of and organise family and social time and to devote himself to his own interests, with no other conditioning factors than a telephone call to solve a specific problem, without specifying the response time. Only the time corresponding to the service actually provided during this period would constitute working time.

The case: Localised guarding and working time

A supermarket chain mandatorily assigns supervisors, outside their working day, by means of a rotating schedule, to provide a localised guard service, by telephone, on Sundays and public holidays, from 8:00 a.m. to 11:00 p.m.; they cannot turn off the phone and must take the call.
telephone and have to take the call. They come in specific cases, when the shop has a problem because it has not been able to open; there is a lack of staff.

Because it has not been able to open; there is a lack of staff; maintenance problems; there has been a night-time robbery or a hold-up, in order to attend to the staff, or there has been a flood. The company does not set a minimum time for attendance. They do not receive compensation for these call-outs, which occur approximately every month and a half.

Faced with this situation, one of the trade union representatives lodged a collective action for a collective dispute seeking a declaration that the workers concerned are entitled to have the on-call duty performed on Sundays and public holidays when shops are open for business considered as actual working time and, consequently, remunerated in the manner laid down in the collective agreement. The SCJ(*) dismissed the action and the trade union lodged an appeal in cassation with the SC(*).

In ruling on the appeal, the SC recalled that both its doctrine and that of the CJEU(*) had established that the period of on-call time when on-call time is not available in person should only be considered as working time if the restrictions imposed working time only if the limitations imposed on (the) worker during that period are of such a nature as to affect, objectively and objectively and substantially affect his ability to manage freely, during that period, the time during which his professional services are not required and to devote it to his own interests.

It recalls that the CJEU has considered working time to be working time when the worker is obliged to remain at home during the on-call period, to be available to the employer and to report to his place of work within 8 minutes, but that this is not the case when the worker is on call, which means that he is permanently available but does not have to be present at the place of work.

Applying this doctrine to the case in question, the SC points out that it is necessary to assess the limitations caused by this system of on-call duty, which.

This system of mandatory on-call duty for supervisors, outside their working day, must be assessed. It points out that the cadence of performance and the lack of a limited response time, in addition to the freedom to establish the place where they can be found, make it possible to affirm that there is no
workers are not subject to a limitation of such a nature as to determine the qualification of the whole of the on-call period of on-call duty as actual working time. The workers concerned have the power to determine their location and to freely manage their personal, family and social time, provided that telephone communication is guaranteed, and the possibility of going to the shop, without setting a minimum time limit for this, in the specific cases mentioned.

Therefore, the SC concludes that the limitations imposed on workers during non-face-to-face on-call duty do not reach a high level. The SC concludes that the limitations imposed on workers in the non-face-to-face shifts do not reach a high degree of intensity, allowing them to dispose of and organise their family and social time and to devote themselves to their own interests without any other conditioning factors than this communication by telephone, and to go to solve a specific problem, without specifying the response time. Consequently, only the time corresponding to the service actually provided, if any, during the time of the call would constitute working time.
actually provided, if any, during that period.

Therefore, the appeal is dismissed and the judgment of the TSJ is upheld.

If you have any questions regarding this issue, please do not hesitate to contact us by telephone at Isabel Torre Carazo or by email at itc@btsasociados.com, we will be delighted to help you.

CJEU(*) Court of Justice of the European Union

SC(*) Supreme Court

TSJ(*) High Court of Justice