The BAG strengthens and weakens employers in this endless debate
Facts and questions
The question of whether a certain service is on-call duty or on-call duty arises in almost every hospital.
Most collective agreements define on-call duty as the duty of the employee to stay at a place specified by the employer in order to start work if necessary. On-call duty may only be ordered if experience has shown that the time without work management predominates. On-call duty, on the other hand, is most of the time working at a location that is to be reported to the employer in order to start work on call. On-call duty may only be ordered if experience has shown that work is only necessary in exceptional cases.
The difference is therefore between the arranged whereabouts and the scope of the work to be expected.
The question, however, is what remuneration is to be paid if the employer orders on-call duty, although the requirements are not met and on-call duty should have been ordered. First and foremost, the question is when, specifically, work can only be expected in exceptional cases.
In its decision of March 25, 2021 (Az 6 AZR 264/20), the BAG clarifies that the service is to be remunerated according to the type of service that has been ordered. This also applies in the event that on-call duty has been ordered, although the requirements are not met.
On-call duty is permitted, even if the doctor concerned is only allowed to be so far away from the place of work, in accordance with the purpose of on-call duty, that he can start work there as soon as possible. That is still the case with the background service ordered by the employer. The obligation to accept a business telephone call and thus to start work immediately is not associated with any spatial restriction on residence. Otherwise, there are no time limits for starting work. The fact that work in the hospital has to be continued promptly after a call is in line with the nature of on-call duty.
However, the BAG went on to explain the scope of the work to be expected. The doctor was called in to work in around half of the background services and actually does 4% of all on-call hours. According to the BAG, this is no longer work in exceptional cases.
So far, only the press release is available of the decision. The reason is eagerly awaited.
As a result, however, the decision for the future means a significant restriction in the practice of on-call duty. Because a telephone call is not uncommon (as in the case to be decided). Even if the call only lasts briefly, this can make on-call duty inadmissible. For the past, however, no additional payments are to be expected in the event of an impermissible order.
Dr. Konrad Maria Weber, lawyer, specialist lawyer for labor law
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