Employer's right of direction and time off of emergency paramedic

16th January 2023

Author/s:
Attorney-at-law and tax consultant Dr. Dr. Bernd Josef Fehn

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 #revision 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 08:00 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 communicate their operational capability by telephone at 07:30 a.m. 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 07:00 p.m. At that time, since 04/04/2021 at 08:22 a.m., 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 01:20 p.m., the #rescue service 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 a.m. and entered this in the actual #duty roster. Attempts to reach the #employee by phone failed. At 01:27 p.m., the #rescue service sent a text message to the #emergency #paramedic. On 08/04/2021, he indicated by phone at 07:30 that he was ready to work. 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 a.m. on 09/14/2021, the #rescue service concretized the #emergency paramedic's #duty to an activity to be taken up at 06:30 a.m. outside of his regular #duty station. He was again not reachable by telephone, which is why the #rescue service tried to reach him by means of SMS and e-mail. On 09/15/2021, the #emergency #paramedic indicated by telephone at 07:30 a.m. his readiness to take up work. He complied with the request to take up work outside his home station at 08:26 a.m. The #emergency service assessed the time from 06:30 to 08:26 as 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 09/15/2021, 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 04/08/2021, 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. 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 that serves as such the satisfaction of an external need (#Bundesarbeitsgericht - #BAG), judgment of 03/18/2020 - 5 AZR 36/19, openJur 2020, 81952 marginal no. 54; judgment of 10/17/2018 - 5 AZR 553/17 - Rn. 13, BAGE 164, 57 = openJur 2019, 240 marginal no. 30. It also follows from this that it will be #work performance, if it is expected to inform oneself about the time and place of the start of #work on the internet.

In leisure time, there is a right to #unreachability. 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 Rn. 45).

The temporally minimal effort 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 that the #emergency paramedic took note of the SMS sent to him only with beginning of his working hours at 07:30 a.m.

As far as 09/15/2021 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 09/12/2021 at 08:14 p.m. The #emergency #paramedic had been able to take note of a #roster change on 09/13/2021, since he was on #duty on that day.

Finally, the #warning contained an inaccurate legal assessment of the employee's conduct and was therefore to 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.