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Remuneration
The periodic penalty payment may be reclassified as actual working time
Publié le 29 mars 2024 - Directorate for Legal and Administrative Information (Prime Minister)
An employee on standby duty may be subject to the actual employment regime when he cannot go about his personal activities during his standby period. This is what the Court of Cassation said in a ruling delivered on February 28, 2024.
A dismissed employee demands payment of overtime from his employer. He argues that his standby duty periods should be paid at the actual labor rate because he considers that he should remain permanently and immediately available to the employer.
The Court of Appeal dismissed the employee’s application. She considers that he was indeed subject to the penalty payment scheme because he could go about his personal business between the two interventions without being permanently at the disposal of his employer. She added that the employee had no other task than to respond immediately to calls. The employee appeals to the Court of Cassation.
The Court of Cassation follows the Court of Appeal. For her, the employee could devote himself to his personal interests between his interventions. He was therefore subject to the periodic penalty payment scheme.
Otherwise, periods of stand-by duty would have been covered by the concept of actual working time. This interpretation by the Court of Cassation is based on the case-law of the Court of Justice of the European Union.