The working time directive stipulates that working time is any time when the worker is at their employer’s disposal. In XR v Dopravni podnik hl m Prahy, the Court of Justice of the European Union (CJEU) held that, as XR could be called out from a break on as little as two minutes notice, his breaks constituted working time.


Basic facts

From November 2005 to December 2008, XR was employed as a firefighter. His working pattern consisted of a day shift covering the period from 06:45 to 19:00 and a night shift covering 18:45 to 07:00. This pattern of two 12-hour shifts included two food and rest breaks of 30 minutes each. However, the breaks were only included in the calculation of his working time (which meant he was paid for them) if he was interrupted by an emergency call-out.

To make sure he was available at all times, his employer stipulated that he could only go to the factory canteen during his breaks if he had a pager with him so that he could be notified of an emergency on as little as two minutes’ notice.

XR challenged the fact his breaks did not constitute working time even if they were uninterrupted and sought remuneration for all the breaks where he had remained at his workplace.


Judgment of lower courts

Although the lower courts of the Czech Republic agreed with XR, the Supreme Court overturned their decisions holding that, as the interruptions only occurred “fortuitously and unpredictably”, the breaks could not be regarded as “forming part of the ordinary performance of his professional duties”. As such, they could not be regarded as working time.

The Supreme Court sent the matter back to the District Court in Prague which decided to refer several questions to the CJEU for a preliminary ruling, including the following:

  1. Is a break period in which an employee must be available to their employer within two minutes, in case there is an emergency call-out, to be considered “working time” within the meaning of Article 2 of the working time directive?
  2. Should part of the assessment of that question hinge on the fact that the call-out occurs only at random or how often such interruptions occur?


Relevant law

Article 2(1) defines “working time” as “any period during which the worker is working, at the employer's disposal and carrying out his [sic] activity or duties”.

Article 2(2) defines “rest period” as “any period which is not working time”.

Article 4 states that every worker is entitled to a rest break after six hours, the terms of which must be laid down in collective agreements or national legislation.


CJEU decision

The CJEU noted that XR was not replaced at his workstation during his breaks and was equipped with a receiver so that he could be alerted to an emergency call-out. It followed that during his break he was subject to a stand-by system. As the concepts of “working time” and “rest period” are mutually exclusive, it then had to decide whether the stand-by system was working time or could constitute a period of rest.

The CJEU concluded that although the interruptions to breaks were occasional and XR was only rarely called upon for a call-out during the periods of stand-by time, this did not mean that those periods of time were “rest periods”. This was because the impact of the time limit imposed on the worker, and the unforeseeable nature of when the interruption might arise, was enough to constrain his ability to manage his free time.

The answer to the two questions, therefore, is that Article 2 must be interpreted as meaning that a break granted to a worker during daily working time which requires them to respond to a call-out within two minutes, should constitute working time if it is clear from the facts that the limitations imposed on that worker “objectively and very significantly” affect their ability to freely manage their time when their professional services are not required. The national court would need to determine the issue in this context by assessing any constraints placed on the worker during what is, because of the availability requirement placed on them, effectively a period of standby.