Should an employee be present 15 minutes in advance?
Employees are regularly required to be present at work 15 minutes before work begins. For the most part they do not get paid for this as some employers are of the opinion that work is not actually carried out during this “canteen time”. This blog discusses two rulings in which unpaid attendance time required by the employer leads, in principle, to a claim for wages by the employee.
District Court of North Holland, November 29, 2023, ECLI:NL:RBNHO:2023:12036.
In November 2023, the Haarlem sub-district court ruled on a case relating to a temporary worker who was working as a baggage handler at Schiphol Airport and who always had to report in, behind customs, 15 minutes before the start of his shift. His claim before the sub-district court was that he should be paid for this.
The sub-district court granted his claim for wages. Under the Dutch Working Hours Act (Arbeidstijdenwet), working time is defined as any time when an employee carries out work under the employer’s authority. Given this definition, it was sufficiently clear to the sub-district court that the temporary worker was under the employer’s authority in these quarter hours because he (i) kept himself available, (ii) at a designated location, and (iii) could not make use of his own time. The sub-district court did not go along with the argument that the temporary worker was free to use the quarter hours at his own discretion and spend them on his own things like texting, chatting and drinking coffee. In fact, it was established that he was not told about which gate he was going to be working at until after he had reported in and after that he had to make his way to this gate. The farthest gate was then a seven- to eight-minute walk away.
The Hague Appellate Court, May 2, 2023, ECLI:NL:GHDHA:2023:738.
The fact that working time is determined by whether the employee is under the employer’s authority during this time is also shown by a judgment of The Hague Appellate Court dated May 2, 2023.
This case involved a call center employee who was required to be present at work 10 minutes before starting work. The scheduling protocol stated, among other things: ‘(…) By always having your web station open, you are always aware of the hours. Starting at 9 a.m. means that you are ready to take or make your first call at 9 a.m. exactly. Therefore, always report to your supervisor 10 minutes before the start of your shift, then you will never be late (…)’. These 10 minutes were not reimbursed. Both at first instance and on appeal it was held that the 10 minutes in which the employee had to be present at work before the start of his shift counted as (paid) working time. In actual fact, he was expected to adhere to the aforementioned scheduling rule, as it was estimated that it would take an average of 10 minutes to log into the 10 programs he needed for his work. So this time was needed for the preparatory work required to carry out the telephone work.
Conclusion
Employers beware! When mandatory – but unpaid – attendance time is presented to the courts, employers seem to get the short end of the stick in most cases. This is even more the case when it is clear that the employee needs this time to comply with the employer’s instructions.
Lees deze blog post in het Nederlands hier.
