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Written by

Jesper Oehlenschlaeger Madsen
Associate Partner

The firefighter’s food breaks

A firefighter’s food breaks, during which he was at the employer’s disposal, constituted working hours.

The EU Working Time Directive, which in Denmark is implemented in legislation, collective agreements, etc., puts a limit on how much employees can work. In the present case, the ECJ found that a firefighter’s food breaks constituted working time taking into account, among other things, that he was required to be able to respond to a call-out within two minutes.

The case concerned a Czech firefighter who worked a shift work schedule consisting of a day shift and a night shift. The firefighter’s daily working hours included two 30-minute food breaks.

The firefighter could, to a certain extent, leave the workplace during breaks, e.g. if he wanted to eat at a nearby canteen. However, he had to be ready to go on call-out within just two minutes in case of an emergency. The firefighter believed that the breaks should be considered as working time within the meaning of the Working Time Directive. The employer disagreed, and the case eventually ended up before the ECJ.

Breaks were part of the working hours
In its judgment, the ECJ generally noted that, in accordance with case law of the ECJ, the concepts in the Directive of working time and rest periods, respectively, are mutually exclusive. Accordingly, standby periods must be classified either as working time or rest periods – and this also applies to standby time during breaks.

The ECJ cited its most recent judgments on the concepts of working time and rest periods in two cases that concerned workers on standby duty; the first case was about a firefighter, while the other case concerned work in a remote location. According to such case law, the question of whether standby time constitutes working time or rest periods depends on, among other things, an overall assessment.

The purpose of this assessment is, according to case law of the ECJ, to determine if the limitations imposed on the worker while on standby duty are of such a nature that they very significantly affect the worker’s ability to manage his or her time.

In this case, the ECJ found that the firefighter’s food breaks were working time, since his ability to manage freely his time during breaks was significantly affected by the requirement to respond to emergency call-outs within just two minutes, if needed. In that regard, the ECJ did not attach significance to the fact that, according to the information presented, the firefighter was rarely called out during breaks.

Norrbom Vinding notes

  • that daily breaks during employees’ working hours, such as lunch breaks, may – depending on the circumstances – constitute working time within the meaning of the Working Time Directive if the employees are at the employer’s disposal during the breaks; and
  • that the outcome of the case is in line with the ECJ’s most recent judgments in this area.

The content of the above is not, and should not be a substitute for legal advice.