The Federal Labor Court decided in its judgment of August 23.08.2023, 5 (Az: 349 AZR 22/XNUMX) on the accessibility of employees outside of working hours. Employees are obliged to take note of an instruction given via SMS, even in their free time, if they know, based on company regulations, that the employer will specify the work performance for the following day in terms of time and place.
1. FACTS
The parties are in dispute about the (re)crediting of working hours to the working time account maintained for the plaintiff employee and about the removal of a warning from his personnel file. The plaintiff has been employed by the defendant company as an emergency paramedic since 2003.
The defendant has a works agreement with regulations on various aspects of working time planning. This stipulates that the vaguely assigned jumper duty for day and late shifts can be further specified in the roster until 20:00 p.m. the day before the shift begins. The defendant's employees can view the current actual roster via the Internet in the "SelfService" set up by the defendant.
Since April 04.04.2021th, 08.04.2021, an unspecified jumper duty was entered for the plaintiff in the roster for April 06.04.2021th, 19. His service ended on April 00, 07.04.2021 at 13:20 p.m. On April 08.04.2021, 06, the plaintiff was exempt from work. The defendant assigned him that day at 00:13 p.m. to work on April 27, 08.04.2021 in the day shift, starting at 7:30 a.m., at rescue station P and made a corresponding entry in the actual roster. She tried in vain to inform the plaintiff about this by telephone. At XNUMX:XNUMX p.m., the defendant sent the plaintiff an SMS with information about the assigned service. The plaintiff reported his willingness to work by telephone on April XNUMX, XNUMX at XNUMX:XNUMX a.m. The defendant no longer used him that day after having called in an on-call employee in the meantime. The defendant warned the plaintiff and noted a compensatory day off in his working time account.
On September 14.09.2021, 9, at 15:15.09.2021 a.m., the company specified the employee's day shift for September 6, 30 and set the start of duty at 7:30 a.m. in rescue station P. The plaintiff did not call his responsible working time designer until 8:26 a.m. He only started his duty in P at 6:30 a.m. The defendant then issued the plaintiff a warning and did not take the time from 8:26 a.m. to XNUMX:XNUMX a.m. into account in the plaintiff's working time account.
The plaintiff therefore sued for the hours not worked to be taken into account in his working time account and for the warning to be removed from his personnel file. He believes that he did not see any changes to the roster that the employer made during the plaintiff's free time and that the defendant's calls and text messages did not reach him on his private cell phone. He is of the opinion that he is neither obliged to check during his free time whether there have been any changes to the roster after work hours nor to accept instructions from the defendant regarding working hours in his free time.
The Elmshorn labor court dismissed the lawsuit. The Schleswig-Holstein State Labor Court largely upheld the plaintiff's appeal. The defendant's appeal before the Federal Labor Court was successful.
2. DECISION
According to the Federal Labor Court, the plaintiff cannot demand a correction to the working time account because the defendant was not in default of acceptance. The plaintiff did not properly offer the work owed. The appeal court made a legal error in accepting a proper offer.
On April 08.04.2021, 7, the plaintiff did not actually offer the work owed at the right place, at the right time and in the right manner. Because he not only had a telephone notification of his readiness for action at 30:XNUMX a.m § 4f paragraph 8 sentence 3 works agreement (BV) owed. An actual offer of work at the station in P at 6:00 a.m. would have been necessary, as the defendant took over the plaintiff's duties § 4f Paragraph 8 Sentence 1 BV effectively specified this and gave him corresponding instructions. The relevant provisions of the works agreement are also effective because they are not subject to the blocking effect of the Section 77 Paragraph 3 Sentence 1 BetrVGwere recorded.
According to the BAG, the employee followed the instructions given in the exercise of the defendant's right of direction § 106 S.1 GewO been bound. The specification of the service is also not in contradiction Section 12 Paragraph 3 TzBfG, since in the event of a dispute there is no on-call employment relationship in this sense.
According to the BAG, the plaintiff cannot claim that he had no knowledge of the effective specification of the service. The defendant's instructions were sent to the plaintiff. The plaintiff has an additional obligation arising from the contractual relationship (§ 241 para. 2 BGB), to take note of the allocation of the service. This is an obligation to provide fringe benefits that is directly related to the work obligation and which the plaintiff is subject to as a result of the regulation in § 4f Paragraph 8 Sentence 1 BV subject to. He also has to fulfill this obligation outside of his actual working hours as an emergency paramedic. Reading a work SMS during your free time is not working time, as the rest period is not interrupted by taking note of the instructions.
3. CONCLUSION
The decision of the Federal Labor Court rejects the right to be unavailable outside of working hours. It is recommended that employers create preventative clarity through company regulations in order to continue to enable flexible organization of working hours and to prevent any legal disputes.
