On-call duty in labor law

On-call duty is a period during which the employee must be available to the employer at all times in order to take up work at short notice if necessary.

On-call duty must be distinguished from standby duty. On-call duty is characterized by the fact that the employee must be at a location specified by the employer during this time in order to start work there immediately if necessary. A clear distinction between the two can be difficult in individual cases.

The decisive factor for the delimitation is the response time specified by the employer as well as whether the employee can spend time in their private and social sphere during the on-call time and freely determine their leisure activities. It may also be relevant here how often the employee is usually on call and how long the respective assignments last.

If the employee is unable to spend time in his private and social sphere or is unable to freely determine his leisure activities due to the specific circumstances, this constitutes on-call duty.

The distinction is extremely important with regard to the remuneration to be paid and the working time. In the context of on-call duty, only the time during which the employee actually performs a work activity is considered working time. The remaining time is considered free time or rest time. This means that if the employee is not required to perform work during the entire period of on-call duty, the entire time is considered unpaid free time.

In contrast, on-call duty as a whole is to be regarded as working time subject to remuneration. This distinction is justified in particular by the fact that the employee has no opportunity to organize his free time in his usual social environment during on-call duty.

There are no clear legal requirements in this regard. A certain response time is usually specified by the employer or agreed with the employer. Case law considers a response time of 30 minutes during a valid on-call duty to be unproblematic.

According to the applicable Working Hours Act, employees must have a rest period of at least 11 hours to recover after the end of working hours. On-call duty is considered a rest period. However, if a work assignment is carried out during on-call duty, this is considered working time. The prescribed rest period of 11 hours therefore begins again after the end of the work assignment.

Employers are only obliged to remunerate the actual hours worked during on-call duty. However, due to the workload associated with on-call duty, many employers grant additional remuneration.

However, the employer usually pays a flat rate for on-call duty. A significantly higher hourly rate is also possible for the times during on-call duty when the employee is actually called to work.

If, on the other hand, the overall circumstances mean that the employee is not only on call but also on standby duty, this time is to be remunerated as normal working time.

This depends on the circumstances of the individual case. If it has been agreed in the employment contract that the employee is obliged to be on call, the on-call duty ordered cannot generally be refused. In addition, such an obligation to be on call may also arise from a collective agreement or a works agreement.

However, if these regulations do not stipulate an obligation to be on call, the employee cannot be forced to be on call. In such cases, the employee has the right to refuse an on-call duty.

However, this should be examined very carefully in each individual case. In case of doubt, it is advisable to initially carry out the on-call duty subject to reservation and to have the labor court clarify the question of whether there is an obligation to be on-call. If such an obligation exists, the refusal of on-call duty constitutes a refusal to work. This can result in a warning or even dismissal.

There is no separate regulation for this. The employer only has to ensure that the limits for permissible working hours specified in the Working Hours Act are not exceeded. They must also ensure that the employee benefits from the rest period between working hours.

If an obligation to be on call is regulated in collective agreements or works agreements, corresponding models can often be found there. These are intended to ensure that, on the one hand, employees are not overburdened and, on the other, that on-call duty is distributed among the employees concerned in a way that is fair to them.