Be Aware - October 2021

Be careful with work breaks that are not really breaks

Must the break granted to a worker during his or her work schedule be considered “working time” or “a rest period” within the meaning of Directive 2003/88?¹

The CJEU defined “working time” in its 9 September 2021² judgment.

In the case at hand, a firefighter had to carry a device during his breaks to warn him, if necessary, that an intervention vehicle would arrive within two minutes. His employer did not consider the break to be working time. Hence, the break was unpaid, unless the firefighter was called out for an intervention during the break. According to the firefighter, the break (whether or not it was interrupted) was to be considered working time and, hence, needed to be paid. He therefore brought proceedings before the Czech court.

After winning the case at first, the worker lost before the Czech Supreme Court. According to the latter (based on established national case law), these breaks were not to be considered working time and therefore did not need to be paid, given the adventitious and unpredictable nature of the interruptions. Since the referring court, which was subsequently seized to rule on the merits was faced with a decision of the Czech Supreme Court that was binding upon it, and at the same time with a situation in which, in the light of the circumstances, it could be led to qualify this break as “working time” within the meaning of directive 2003/88, decided to consult the CJEU.

The CJEU was asked if article 2 of Directive 2003/88 must be interpreted to mean that the break granted to a worker during his daily working time, during which he must be ready to respond to a call-out within a time limit of two minutes, if necessary, is to be classified as “working time” or as a “rest period”? Do the occasional and unpredictable nature and the frequency of call-outs have a bearing on such classification?

To determine whether the break in question shall be paid or not, we must ask ourselves if this break is to be considered “working time” or a “rest period”.

“Working time” is defined by Directive 2003/88 as being “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duty”, while a “rest period” is defined negatively as any period that is not working time. A qualification as “working time” therefore excludes by definition a qualification as a “rest period”.

To answer the question, the CJEU first referred to the (abundant) case law regarding on-call periods in order to conclude that: a break granted during the daily working time should be considered “working time” (and therefore a fortiori not a rest period) if, during this break, the worker must be ready to respond to a call-out within a time limit of two minutes, if necessary, and if the constraints imposed on this worker during said break are such that they objectively and very significantly affect the worker’s ability to freely manage the time during which his professional services are not required and to devote that time to his own interests.

Therefore, a break can be considered working time under certain circumstances.

A genuine and determining occupational requirement versus prohibited discrimination: a little reminder from the Court of Justice of the European Union

Can an employer restrict an employee’s position on grounds that this employee suffers from a disability? In principle, he cannot as this would constitute prohibited discrimination under the Equality Framework Directive 2000/78/EC. Yet, as an exception to this rule, an employer can claim that a disability prevents an employee from meeting a genuine and determining occupational requirement for the job at hand, justifying unequal treatment (such as a job restriction).

In a preliminary ruling of 21 October 2021³, the CJEU recalled the conditions to validly resort to such an exception.

The facts of the case are the following. In 2014, a woman (“VA”), was nominated as a juror in Bulgaria. VA suffers permanent visual impairment and, as part of her juror duties, in principle, she should serve in criminal trials. Yet, for more than a year following her nomination, VA had not been invited to serve in any criminal trial, and all her requests to this end had been denied by the two judges in office at the time. VA hence brought a claim against the judges concerned, alleging discrimination based on her disability.

The judges, for their part, argued that VA cannot serve as a juror because juror duties require to visually appreciate evidence during a trial. They further argued that such ability is a genuine and determining occupational requirement, as the principles of Bulgarian criminal proceedings require that evidence should be assessed “immediately” and “directly”, which is incompatible with the visual impairment suffered by VA.

The national court then decided to ask the CJEU for a preliminary ruling. The question was whether VA’s visual impairment concerns a characteristic that constitutes a genuine and determining occupational requirement for the trial juror position, justifying unequal treatment.

In its preliminary ruling, the CJEU recalled that:

• the notion of a genuine and determining occupational requirement must be construed narrowly;
• such an exception must serve a legitimate objective; and
• the occupational requirement must be proportionate to the legitimate objective, taking into account that, in case of a disability, an employer is in principle required to make reasonable accommodation for employees to fully exercise their duties.

In the instant case, the CJEU regarded the objective of the restriction - compliance with the principles of Bulgarian criminal proceedings – as legitimate. However, the CJEU ruled that a restriction such as the one imposed on VA was disproportionate, considering that, between 2014 and 2015, VA had been prevented from taking part in any criminal trial, regardless of whether or not her visual impairment was, in fact, an obstacle to serve as a juror. In other words, whether VA’s disability prevented her from meeting a genuine and determining occupational requirement should have been appreciated on a case-by-case basis, taking into account the requirements and specifics of each trial.

DLA Piper employment publications of recent months

• “Licencier pendant un arrêt de travail ?”, Trends-Tendances, Frederic Brasseur, Laurent De Surgeloose