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In your free time you can devote yourself to your children and don't have to worry about news from work (icon image)
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Do I always have to be available for my supervisor after work?
The Schleswig-Holstein State Labor Court dealt with this question in a judgment that has now been published in September (reference number: 1 Sa 39 öD/22).
The judges' clear answer: no.
Simply because the boss calls, employees do not have to stand by their guns outside of their working hours.
Springer services also have limits
The specific case concerned an employed paramedic whose weekly working hours including on-call times were 48 hours.
A works agreement stipulates that the emergency paramedics can also be obliged to provide stand-in services, for example if an employee falls ill at short notice.
The employer must inform the employee by 8:00 p.m. on the previous day at the latest that he is to work as a jumper.
Employees were able to view the current duty roster on the Internet.
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When the employer had a short-term need for a jumper for April 8, 2021 at 6:00 a.m., he entered the plaintiff in the roster, but tried in vain to reach him by phone in his free time.
The paramedic did not respond to a text message.
It was not until 7:30 a.m. that he was able to go to work.
In the meantime, the employer had brought in an employee from the on-call service.
The plaintiff was no longer employed and was admonished.
The day was entered as an unexcused absence.
When the man was to be deployed again at short notice from 6.30 a.m. in September 2021, he did not answer the phone again the day before - in his free time.
He left an e-mail and a text message unanswered.
It was not until 7.30 a.m. on the working day that he announced that he would be able to take over the shift.
About an hour later he was at the ambulance station.
The employer gave the man a warning and again rated the time from 6:30 a.m. to 8:26 a.m. as an unexcused absence.
Free time is free time, roster is roster
The plaintiff demanded back payment of the wages withheld and the removal of the warning from the personnel file.
He is not obliged to find out when he has to work during his free time.
He put his cell phone on silent so that he could devote himself to his children.
He also didn't read the SMS because his mobile phone was moving SMS from an unknown number to a separate folder.
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The employer said that the reason for the jumper services was covered by his managerial rights.
The employee should also be expected to take a look at the duty roster.
This is not work.
Because of his duty of loyalty, the plaintiff had to use his phone to find out about working hours.
However, the regional labor court agreed with the emergency paramedic on all points.
It is true that an employer exercises his right to direct by changing the duty roster.
However, the change must also be made known to the employee.
The employer did not prove this here.
An employee is not obliged to check changes to the roster in his free time.
He does not have to answer a phone call from his employer or read an SMS.
Being able to make decisions about one's free time is one of the "principal personal rights," according to the judges at the State Labor Court.
Reading an official text message or reading the duty roster on the Internet constitutes "work" to which the plaintiff is not obliged to do in his free time.
If he does not take note of a change in the duty roster, he will only be formally informed of this when work begins, here at 7:30 a.m.
Since the emergency paramedic had offered his work without success, the employer was obliged to continue to pay wages.
The warning must be removed from the personnel file, according to the judge.
flg/law agency