AEmployees can be expected to read a text message from their employer about the start of their previously scheduled work shift in their free time. If a company regulation stipulates that emergency paramedic emergency services are ordered by the employer the day before at a certain time, the employee may not ignore such an SMS, the Federal Labor Court (BAG) in Erfurt decided in a judgment published on Wednesday. (AZ: 5 AZR 349/22)
The dispute concerned an emergency paramedic from Schleswig-Holstein. According to the company agreement, the man was also assigned to so-called unspecified temporary duties in order to compensate for short-term illnesses of other employees. The employer had to inform the assigned jumper of the start and place of work the day before by 8 p.m. at the latest.
When the employer had to fill services at short notice in April and September 2021, she was unable to reach the plaintiff by telephone. So she sent him a text message the day before and told him to come to work. The paramedic did not acknowledge the text message and therefore did not come to work or arrived late. The employer reduced a credit in his working time account and issued a warning. The plaintiff, on the other hand, said that he was not obliged to constantly check his smartphone for text messages from his boss.
Checking your cell phone once would have been enough
While the Kiel State Labor Court agreed with him, the BAG ruled that the plaintiff had to take note of the SMS sent by the employer one day before the start of work, even in his free time. He knew that he would be used as a jumper and that he would be informed that work would start the day before by 8 p.m. In the case of “work on call”, the law requires the employee to be informed of their assignment at least four days in advance. However, there is no on-call employment relationship here because the plaintiff knew about his employment. Only the specific start and location of the service were unknown.
He also didn’t have to “constantly” check his smartphone for messages from his boss. It was enough to find out about the specific start of work at 8 p.m. the day before. The court ruled that checking your cell phone once should not be considered working time.
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