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14 December 2021

Employee training: working time or rest period?

Employers must ensure that the period during which an employee attends vocational training required by the employer is regarded as working time. Although the period allocated to such training does not meet all the conditions under European labour law for "working time", a recent decision of the Court of Justice of the European Union ("CJEU") provides a number of important clarifications in this respect. It is advisable for employers to pay attention to the developments introduced by this decision, which is expected to bring about a change in the practice of national courts.

What's new in the CJEU decision?

The Iasi (Romania) Court of Appeal asked the CJEU in Case C-909/19 for a preliminary ruling on whether periods during which an employee takes a vocational training course represent working time, when such course:

  1. is imposed by the employer; and
  2. takes place outside the employee's normal place of work, i.e. at the location of the training provider; and
  3. during the course, the employee does not carry out their normal duties.

In essence, the CJEU has ruled that the period during which an employee attends  vocational training required by their employer constitutes working time, even if the training occurs outside the employee's normal place of work and even if during this time the employee does not perform their duties according to their employment agreement.

The CJEU decision is notable because it qualifies as working time a period which does not meet the defining elements of working time laid down in Directive 2003/88/EC – Organisation of Working Time (Article 2(1)), i.e. any period during which the employee:

  1. is at work;
  2. is available to the employer; and
  3. carries out their activity or duties.

In the case under review, the period of vocational training meets only one of the three conditions listed above, namely that the employee is at the disposal of their employer as long as they are taking part in the course at the employer's instruction.

As is clear from the considerations set out in the decision, the period during which the employee completes vocational training imposed by the employer was qualified as working time rather by excluding the possibility of this time being regarded as a rest period, given the provisions of the Directive under which the concepts of working time and rest period are mutually exclusive.

To hold that the period in question constitutes working time and not a rest period, the Court held that:

  • the employee is required to be physically present at the place determined by the employer and is at the disposal of their employer;
  • it is irrelevant whether the training takes place, in whole or in part, outside normal working hours;
  • it is irrelevant that the obligation to undergo vocational training arises from national law;
  • the fact that the activity carried out by the employee during periods of vocational training differs from that carried out as part of their normal duties does not preclude those periods from being classified as working time if the vocational training is undertaken at the employer's request and where, consequently, the employee is subject as part of that training to the employer's instructions;
  • an interpretation of the concept of "working time" within the meaning of the definition in the Directive could enable the employer to impose on the employee, who is the weaker party in the employment relationship, training obligations outside normal working hours, to the detriment of the employee's right to have sufficient rest;
  • employees must be given minimum rest periods – in particular daily and weekly – as well as adequate breaks and a ceiling on the duration of the working week.

What should employers look out for in practice?

It is to be expected that the CJEU's ruling will find practical application in the decisions issued by national courts. It is therefore advisable for employers to re-examine their plans and schedules for 2022 in terms of employee training. One solution for employers to ensure alignment with the ruling is to organise training programmes within the limits of normal working time. Alternatively, if these programmes are run outside normal working hours, employers can expect possible requests from employees or even labour inspectors for compensation for overtime.

author: Mara Moga-Paler