HEADLINES LABOUR & EMPLOYMENT
The Belgian Supreme Court has rendered a new judgment which will be warmly welcomed by employers working with "stand by" or "on call" services. An employee being "stand by" or "on call", is not necessarily entitled to his/her usual pay. This judgment puts an end to the uncertainty the Jaeger case created for certain employers.
An employee of a large IT-company had to perform stand by services in the framework of maintenance agreements concluded between his employer and its customers. When the employee was stand by, he had to be able to respond to a customer's call within two hours. The employee was not obliged to perform the stand by service at a particular place imposed by the employer. He only had to be reachable.
The employee obtained a lump sum allowance for every stand by period. When he was called, he received his usual pay for the time performed, increased, if applicable, with overtime pay. The employee claimed, however, that his usual pay was due for all hours he had to be stand by. In fact, he argued that work is performed during all hours that the employee is at the employer's disposal. The employee derived from this assumption that he was entitled to his usual pay for the hours he was stand by.
The Supreme Court rejected the employee's claim. The Court judged that from the Belgian and European legislation the employee cited, it could not be inferred that the allowance for "passive" stand by services, meaning that the employee must be able to respond to possible calls without being obliged to be present at a certain place or to fulfill its usual tasks, should be equal to the pay for hours which are effectively performed.
As a result, the employer can agree upon an allowance for stand by services which is lower than the usual pay. Such allowance can be agreed upon in an individual employment agreement or in a CBA.
For further information, contact: employment@liedekerke.com
