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Summary
The Bucharest Tribunal has ruled that the time spent by employees in isolation at work during a Covid-19 pandemic state of emergency represents working time. However, the time spent in isolation at home following the period of isolation at work does not constitute rest time.
Relying on the findings of ECJ cases Jaeger (C-151/02), Dellas (C-14/04) and Matzak (C-518/15), the Tribunal made an exhaustive analysis of the conditions for a worker to be considered as performing work. It concluded that in the case of social workers who were obliged to stay in isolation at work and perform the work of the other employees who were in isolation at home, the whole time spent at work is to be considered working time.
The Tribunal ascertained that each employee had performed overtime during the period of the state of emergency.
Furthermore, the Tribunal obliged the employer to pay the employees the mandatory incentives for the work performed during the night, the weekend and/or during national holidays, as applicable.
However, the Tribunal refused to consider the time spent in isolation at home following the period of isolation at work as a working period or as a resting period, although the employees continued to have their time at home restricted by not being able to leave the house under any circumstances (as the rest of the population was permitted to do for several specific reasons). -
Legal background
As the Covid-19 pandemic was starting to spread through Europe, Romania entered a state of emergency on 16 March 2020 which lasted up until 14 May 2020. During this period of time, a national lockdown was imposed and travelling was possible only for specific and limited reasons.
Military Ordinance 8/2020 regulated that during the state of emergency the provision of social services in residential care or assistance care centres for the elderly, children and other vulnerable categories of persons was not allowed to cease or be suspended.
In order to ensure the health and safety of the people benefiting from such services and to reduce the risk of infection, the Military Ordinance imposed the measure of preventive isolation at the workplace or in specially dedicated areas to the staff of these centres. Refusal to observe the preventive isolation measures would have been considered a criminal offence.
After the period of isolation at the workplace, the employees were cyclically entered into a period of preventive isolation at home, for a period equal to that of preventive isolation at work. The presence of staff at the social centres was ensured by the use of shifts.
With regard to their salary rights, Government Ordinance 50/2020 (GO 50/2020) regulated that, throughout the period of preventive isolation at work followed by a period of preventive isolation at home, the salary rights of social workers were to be granted at the level held in the month prior to the state of emergency (i.e. February 2020) regardless of the actual time worked.
The employees argued that the time spent in isolation (either at work or at home) should be regarded as working time. The employees claimed that during the time interval spent in isolation at work, their worked hours reached up to 12 hours/day as the centre residents required constant care.
For the period worked under these conditions, the employees were paid at the level of their salary in February 2020 (following the legal provisions of GO 50/2020). They considered the payment did not include the overtime incentives due for the overtime work performed and argued that the salary rights regulated by GO 50/2020 were to be regarded as ensuring a minimum salary level and, thus, that overtime incentives should be awarded to them up until the end of the state of emergency (i.e. 14 May 2020).
The Ministry of Labour expressed an official position in relation to this matter on 11 May 2020 and communicated that the period during which the employee was in isolation at home cannot be recorded as working time and will be registered as it is, respectively isolation at home without however affecting the employees’ salary rights. -
Facts
The claimants were employees of the District 2 General Service for Social Care in Bucharest. During April to May 2020, they carried out their activity in social centres in accordance with the provisions of Military Ordinance 8/2020.
The employees’ working schedules regulated by their employment contracts were normally set at eights hours/day, 40 hours/week, in shifts.
Based on the time records analysed by the Tribunal, one group of employees was registered to have performed 408 hours of work during the period of state of emergency (17 days spent in isolation at work and performing work 12 hours a day) out of which 248 were to be considered overtime. For another group 336 hours of work were registered out of which 176 were to be considered overtime. -
Judgment
In its analysis the Tribunal referred to the criteria developed by the ECJ in the Matzak case, respectively that the determining factor for the classification of ‘working time’ is the requirement that the worker be physically present at the place determined by the employer and to be available to the employer in order to be able to provide the appropriate services immediately in case of need. Thus, any obligation which makes it impossible for the employee concerned to choose the place where they stay during standby periods, must be regarded as being within the performance of their duties.
In the case at hand, the Tribunal concluded that during the period the employees were in isolation at work (i) the employees were required to be present in a place determined by the employer and (ii) to remain available to the employer. Furthermore, (iii) the manner by which the activity was organised required the employees present to fulfil the activities which normally would have been performed by their colleagues (who were in isolation at home).
In connection to the time spent in isolation at home with no possibility of leaving the home (for example for basic shopping or physical activity), the Tribunal concluded that this period of time cannot be considered working time although a restriction on the place of stay continued to be imposed on the employee.
At the same time, it did not consider it to be rest time. In this regard, the Tribunal argued that the provisions of Government Ordinance 50/2020 maintained the employees’ salary rights equal to the ones in February 2020 and consequently the period they stayed at home will not be qualified as rest time. -
Commentary
The refusal of the Tribunal to determine whether the time spent in isolation at home represents working time or rest time seems rather odd as Directive 2003/88/EC expressly states that ‘rest period’ means any period which is not working time. Consequently, this means that there is no intermediary or third category of ‘time’ between ‘working time’ and ‘rest time’.
What is clear from the case at hand is that the respective employees encountered restrictions in regard to their right of free movement (i.e. isolation at work and at home). In addition, they were not allowed to leave the place of isolation under any circumstances. Thus, the restrictions imposed on the social workers were more strict than the ones imposed on the general population.
However, given that during the time spent in isolation at home the employees were no longer under the obligation to perform their duties or to be available to perform them when requested, the respective period cannot be considered ‘working time’, a conclusion which was also shared by the Tribunal.
While in isolation at home, the employees maintained their liberty to dispose of their time of their own free will. Moreover, given that such restriction of movement was not officially imposed by the employer but by an official authority (i.e. the Ministry of Foreign Affairs), from this point of view it can be argued that the time spent in isolation at home can be regarded as rest time.
The situation of oil platform workers could have been used as a comparison tool by the Tribunal as platform workers usually perform their activity in shifts of 12 hours/day for a period of 14 consecutive days followed by a rest period of two weeks. The restriction of location is given by the place of work, however the principle of continuous working time followed by a continuous period of rest could have been used.
Thus, we believe that the rest period granted to the employees following the period of isolation at work was the cumulative daily rest period not taken during isolation at the workplace, whilst work performed outside the general working hours (i.e. more than 40 hours/week) will be subject to overtime regulations. Furthermore, the rest time following the isolation at work will not be regarded as paid time off for the overtime performed during the respective period.
The General Service for Social Care filed an appeal against the Tribunal’s decision but the Appeal Court rejected it upholding the Tribunal’s conclusions regarding the performance of overtime and the ascertained number of overtime hours performed.
At the time of this case report, the decision of the Appeal Court was not published. It remains to be seen how the higher court reflected on the findings of the Tribunal with regard to the qualification of the time spent in isolation at home (which the lower court considered as not being working time, nor rest time) and whether it agreed with the initial conclusion.Subject: Working Time
Parties: Unknown
Court: Tribunalul Bucuresti (Bucharest Tribunal)
Date: 4 November 2020
Case number: 17810/3/2020
DOI: 10.5553/EELC/187791072021006002010
European Employment Law Cases |
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Case Reports | 2021/21 The time spent in isolation at work during a state of emergency represents working time (RO) |
Keywords | Working Time |
Authors | Andreea Suciu en Teodora Manaila |
DOI | 10.5553/EELC/187791072021006002010 |
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Suggested citation
Andreea Suciu and Teodora Manaila, "2021/21 The time spent in isolation at work during a state of emergency represents working time (RO)", European Employment Law Cases, 2, (2021):114-116
Andreea Suciu and Teodora Manaila, "2021/21 The time spent in isolation at work during a state of emergency represents working time (RO)", European Employment Law Cases, 2, (2021):114-116
The Bucharest Tribunal has ruled that the time spent by employees in isolation at work during a Covid-19 pandemic state of emergency represents working time. However, the time spent in isolation at home following the period of isolation at work does not constitute rest time. |