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  • The use of on-call duty

    An exception to working hours, during a period of partial activity

Article:

The use of on-call duty, an exception to working hours, during a period of partial activity

16 April 2020

Emilie Ducorps-Prouvost , Attorney at law - Partner - Employment Law |

To deal with the current health crisis, many companies have set up the partial activity (partial unemployment) scheme; thus, the question of combining this system with the system of on-call duty arises.

Can an employee on partial unemployment be asked to be on-call duty?

Partial activity consists of a suspension of the employee's employment contract: as a matter of principle, the employee who is put into partial activity is not at the disposal of his employer and is therefore not supposed to work for him.

On-call duty is "a period during which the employee, without being at his workplace and without being at the permanent and immediate disposal of the employer, must be able to intervene to carry out work in the service of the company" (article L. 3121-9 of the French Labour Code).

However, the question of on-call duty during a period of partial activity may arise in practice in certain business sectors, and particularly in the industrial sector, where even if the activity is stopped, the company must be able to deal with any emergency requiring on-site intervention.

To our knowledge, the Ministry of Labour has not taken a position on this issue.

As there is no text prohibiting it to this day, we do not see, a priori, any incompatibility between partial activity and on-call duty.

Yet, how do we deal with the situation in practice?

The employee who is on-call duty must receive compensation, either in the form of a rest period or a financial compensation, while the intervention period is actual working time.

This raises the question of the applicable regime for this situation and in particular the treatment of the sums paid to the employee during this period (i.e. on-call duty bonus paid because of the hardship imposed on the employee and remuneration linked to the intervention time) with regard to the obligations to declare hours worked and hours not worked during partial activity.

In concrete terms, can an employee in full partial unemployment cumulate his partial activity compensation with an on-call duty bonus and remuneration linked to periods of intervention? If so, must all of his working time be declared as partial unemployment, or must hours be re-processed?

With regard to the on-call duty bonus, one option that could be considered in practice would be to artificially convert the amount of this bonus paid to the employee in hours worked in order to be able to deduct it from the total number of hours declared as being not worked.

Nevertheless, we feel that this solution is risky because it would result in the employee acting as if he had actually worked a few hours in the month. Consequently, the employee in question could claim - and rightly so - that the legal nature of the bonus is distinct and in fine claim payment for the hours declared as having been worked although not paid. This risk would even be  greater for companies that offer compensation linked to the on-call duty in the form of a rest period.

Consequently, from our point of view, it seems more reasonable to consider that this on-call duty bonus, which is intended to compensate for a "hybrid" time that is neither actual working time nor rest time, should be paid without artificial reprocessing into hours worked.

In this respect, we can refer to the document of the French Ministry of Labour entitled "précisions sur les évolutions procédurales et questions-réponses" (“clarification on procedural developments and questions-and-answers") relating to the exceptional partial activity scheme, updated on 10 April 2020. In this document, the Ministry of Labour indicates that for the determination of the hourly rate used as a basis for the calculation of the compensation and allowance for partial activity, bonuses for which "the amount is not impacted by the introduction of partial activity" must be excluded. This exclusion tends to show that certain bonuses may be paid despite the fact that the French State assumes responsibility for the remuneration of employees in partial activity.

By contrast, as far as intervention time is concerned, it seems logical to consider that this actual working time should be deducted from the statement of hours not worked sent by the employer to the administration at the end of the month.

In conclusion, a position statement by the Ministry of Labour could be useful on the treatment of on-call duty during the partial activity.