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Lawyer and tax consultant Dr. Dr. Bernd Josef Fehn

16. January 2023

The #Landesarbeitsgericht (#LAG) Schleswig-Holstein has clarified in its judgment of 27.09.2022 – 1 Sa 39 öD/22, NZA-RR 2022, 624 = openJur 2022, 20548 that an #emergency paramedic employed by a #rescue service does not have to be available for his #employer outside his #duty hours. The #review was allowed.

In a #company agreement it was regulated that the #emergency paramedics can be obligated to standby duty. The #employer had to inform them of this by 8 p.m. at the latest the day before. On the days in question in the following (08.04. and 15.09.2021), due to the #Corona pandemic, the employees in the unspecified #jump duty in the cases in which no further concretization of the duty took place, did not have to be at the assigned #duty location at #the start of the duty, but had to notify their operational capability by telephone at 07:30 from home. Employees had the opportunity to view the current #duty schedule on the Internet.

On 04/06/2021, the plaintiff emergency paramedic’s duty ended at 19:00. At that time, since 04.04.2021 at 08:22 for 08.04.2021, his next #working day, an unspecified #jump duty had been entered in the actual duty schedule. On 04/07/2021 at 13:20, the #Rescue Department assigned the #emergency paramedic a #day shift duty for 04/08/2021 at a #rescue station different from his #regular station with a duty start time of 06:00 and entered this in the actual duty roster. Attempts to reach the employee by phone failed. The #rescue service sent a text message to the #emergencyparamedic at 13:27. On 08/04/2021, the latter indicated his readiness to #work by phone at 07:30. He was not further deployed by his #employer, who in the meantime had called in an employee from the #on-call service. Instead, he was admonished and had 11 hours deducted from his #working time account.

For 09/15/2021, the #emergency paramedic was initially scheduled for “#jumper short term” duty in the actual duty roster, which was restricted to “#day duty” on 09/10/2021. 09/14/2021 was off. At 09:15 on 09/14/2021, the #rescue service concretized the emergency paramedic’s duty to an activity to be taken up at 06:30 outside of his #regular duty station. The latter was again not reachable by telephone, which is why the #Rescue Service tried to reach him by means of SMS and e-mail. On 15.09.2021, the #emergency paramedic indicated by phone at 07:30 his readiness to #take up work. He complied with the request to #take up work outside his #home station at 08:26. The #Rescue Service considered the time from 06:30 to 08:26 an unexcused absence, issued him a warning for this and deducted 1.93 hours from his #working time account.

The court ordered the #employer to credit 11.75 hours after the #employee reduced his request, which was for Sept. 15, 2021, to 0.75 hours of travel time at trial, and to remove the #warning from the #personnel file.

It is true that the #employer exercised its #directive right by changing the duty schedule. However, the #roster change must have been received by the #emergency paramedic. Since he had offered his #work performance 08.04.2021, his #employer was in #default of acceptance. The #employee was not obligated to call up an official SMS during his #leisure time in order to inform himself about his #working time and thus to interrupt his #leisure time at the same time. The reading of a text message, with which the #employer specifies his #right of direction with regard to time and place of the exercise of work, is #working time. demanded. “#Work” is any activity which as such serves the satisfaction of an external need (#Bundesarbeitsgericht – #BAG), judgment of March 18, 2020 – 5 AZR 36/19, openJur 2020, 81952 marginal no. 54; judgment of October 17. 2018 – 5 AZR 553/17 – Rn. 13, BAGE 164, 57 = openJur 2019, 240 Rn. 30. It also follows from this that it is #work performance if it is expected to find out about the time and place of #work on the internet.

In #leisure time, there is a right to #unavailability. #Leisure time is characterized by the fact that #employees do not have to be available to employers and can decide for themselves how and where they spend this #leisure time. During this time, they are not part of an externally determined organizational unit under labor law and do not function as a #worker. It is part of the #personal right that a person decides for himself for whom he wants to be available or not during this time (#LAG Thüringen, judgment of May 16, 2018 – 6 Sa 442/17, openJur 2021, 11573 marginal no. 45).

The minimal effort in terms of time that is associated with calling up and reading an SMS is not opposed to this. #Work does not become #leisure time because it occurs only very slightly. The right to #non-accessibility serves not only the #health protection but also the #personal protection. The #rescue service could and had to expect consequently after the #traffic view that the #emergency paramedic took note of the SMS sent to him only with beginning of his service at 07:30 o’clock.

As far as 15.09.2021 is concerned, the #working time concretization had been possible earlier, since the breakdown of another employee underlying the concretization of the float duty had already occurred on 12.09.2021 at 20:14. The #emergency paramedic had been able to take note of a #roster change on 13.09.2021, since he was on duty on this day.

Finally, the #warning contained an inaccurate legal assessment of the employee’s conduct and therefore should be removed from his #personnel file.

In summary, the #emergency paramedic was not obligated to check for changes in the duty schedule on the Internet during his #free time, to take an on-duty call and to read an on-duty text message or e-mail. This is because being able to decide for oneself how to organize one’s #leisure time is part of the #personal right of every employee.