NL: Employers beware: wages are due on mandatory start-up time!

 

In a recent ruling, the Court of Appeal of The Hague (Gerechtshof Den Haag 2 May 2023, ECLI:NL:GHDHA:2023:738) granted a wage claim from a call centre employee who took the position that start-up time is also working time (and must therefore be paid). This ruling may have financial consequences for all employers who require their staff to be present earlier.

What was this case about?

In the planning rules of a call center, it is stipulated that the call center employees must report to the supervisor 10 minutes before the start of their shift. In these 10 minutes, the employees have to unlock the computer, start some programs and log in to the phone so that the employees are ready exactly on time for their first call.

One of the employees of the call center is entitled to payment of salary over this 10 minutes of start-up time, which he believes should be classified as working time.

The call centre takes the position that it does not owe any wages about the start-up time. According to the call center, early attendance is not so essential for carrying out the work that there are consequences if the employees do not adhere to the mandatory start-up time. Furthermore, the employer states that in the 10 minutes in question, the employees do not receive instructions and cannot yet be called to perform the call center work. Moreover, according to the call center, it is relevant that the customers only pay from the moment the service is started.

Judgment of the Court of Appeal of The Hague

Just like the subdistrict court in 2021 (District Court of The Hague 8 December 2021, ECLI:NL:RBDHA:2021:16078), the Court of Appeal is of the opinion that the 10 minutes that the employee must be present before the start of his shift counts as paid working time. In the 10 minutes before the start of the shift, the employee is expected to be present at the workplace and to prepare for his shift. It follows that the call center employee is limited in his ability to devote his time to his own affairs. According to the court, the fact that he is not yet productive for the employer at that time, because the employer is only paid by her customer from the moment the employee is "in line", does not detract from this.

The judgment of the Hague subdistrict court is upheld by the court, so that the employer owes over the start-up time:

• arrears of wages,
• holiday pay,
• statutory increase (50%), and
• statutory interest.

The legal costs are also borne by the employer.

Lesson for practice

For employers, it is important to know that mandatory start-up time qualifies as working time, on which wages must be paid.

Wage claims are subject to a limitation period of 5 years, so employees can still file a wage claim a considerable time later. If that claim is granted, there is a good chance that the employer will have to pay not only the wages, but also the statutory increase and statutory interest.

 

Would you like to know more about wages or do you have another employment law question? 

 

For further information, please contact:

Frouke Vlaskamp, Partner

Milestone Advocaten, Utrecht

vlaskamp@milestoneadvocaten.com

t: +31 30 744 0477

 

 

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