Cass. Soc., 4 December 2024, no. 23-11.575
In a ruling handed down on 4 December 2024, the French Supreme Court (Cour de cassation) clarified the conditions under which a penalty payment (astreinte) within the meaning of Article L.3121-9 of the Labour Code can be defined.
For a period to qualify as on-call, two cumulative conditions must be met:
The waiting period, if it meets these criteria, entitles the employee to financial compensation or time off, while the time spent on call is considered as actual working time and paid accordingly.
In this case, a manager on a call-out list in the event of an alarm being triggered in a shop felt that he was subject to on-call duty without being compensated. Under the system set up, the remote surveillance company was required to notify the shop manager or two other managers in the event of an incident, without them being obliged to respond or intervene. The employee had responded to 39 calls over the course of a year and had travelled 3 times, which led the Court of Appeal to conclude that he was on call.
However, the Court of Cassation pointed out that on-call duty presupposes a strict requirement of immediate availability, which was not the case since the employee was not obliged to answer calls and was not required to remain permanently contactable or to intervene systematically. It therefore contested the Court of Appeal’s classification of the employee’s on-call status, in the absence of permanent and immediate availability, characterising only the employee’s ability to intervene in the context of occasional calls, which he was free not to take!
This decision adds a new and further clarification to the case law on on-call duty: it excludes this qualification in the aforementioned case, defining precise criteria making it possible to distinguish, on the one hand, a situation of on-call duty in the legal sense and, on the other hand, that of an employee contacted by the employer, but not bound by an obligation to respond or intervene.