The period a train cleaner waits in a station between two services is not actual working time

Cass. soc., November 6, 2024, 23-17.679

As part of a dispute contesting his dismissal, an employee who worked as a train cleaner sought back pay for overtime worked between two shifts.

To carry out his duties, the employee travels on the first train, then at the arrival station waits for another train to start a new service.

In his view, this waiting time between two performances constitutes actual working time and should therefore be paid as such.

In support of this argument, the employee states that he :

• Must remain physically present at the train destination;
• Is dressed for work;
• Must answer employer’s telephone calls.

It has therefore submitted a question to the Court of Justice of the European Union (CJEU) for a preliminary ruling on whether this waiting time should be classified as working time.

In its ruling of 6 November 2024, the Court of cassation rejected the request to refer a question to the CJEU for a preliminary ruling.

It refers to a number of European cases and considers that the position of the European Court is perfectly clear, so that there is no need to refer the employee’s proposed question to it for a preliminary ruling.

In the light of these factors, the Court of cassation will rule on the case before it.

The Court upheld the lower court’s analysis, holding that during the periods when the employee reached his destination between two trains, he was not subjected “to constraints of such intensity that they had objectively and very significantly affected his ability to manage freely, during this period, the time during which his professional services were not required and to attend to personal matters”.

For the Court of cassation, the fact that the employee had to answer the employer’s calls and was dressed for work did not prevent him from going about his personal business.

The Cour de cassation therefore recognised the constraints placed on the employee during the period of waiting between performances, but did not deem them sufficiently intense to be considered as actual working time.

It would certainly have been different if the employee had been forced to stay in a specific place, without the option of wandering around at will while waiting for the second train.