A new Norwegian Supreme Court ruling regarding disposable time

The case concerned an employee in the said industry who, for welfare reasons, had been granted reduced working hours pursuant to section 10-2 (4) of the Working Environment Act.

The employee worked according to a disposable schedule, which is a scheme for placement of ordinary working hours. In addition to stipulating ordinary working hours, the scheme included alternating fixed available periods ("disposable time") and period off work. While the employee's primary objective was to conduct work during the available period on the offshore shelf, the employee could also be called out during the periods off work. The employee claimed that the right to reduced working hours also enabled him to a corresponding reduction of scheduled disposable time.

In order to assess the claim from the employee, the Supreme Court therefore started by considering whether the disposable time qualified as "working time" according to the Working Environment Act and Directive 2003/88 (the "Working Time Directive"). The Supreme Court referred to EU's judgement in case C-580/19, where it follows that the concept of "working time" within the meaning of the Working Time Directive also covers entirety of periods of "stand-by time" (meaning a period during which an employee must remain contactable and may be required to return to his workplace), including those according to a stand-by system, if the stand-by time entails that there are such constraints imposed on the employee that it affect, objectively and very significantly, the possibility for the employee to freely manage the stand-by time and the ability to pursue his own interests.

Subsequently, the Supreme Court held that disposable time does not in itself constitute working time. However, if the relevant off-duty period is subject to restrictions that objectively and to a very significant extent affect the employee's possibility of disposing the off-duty time and pursue his own interests, the period may be considered as working time.

Although the employee in this specific case was available to be called out to offshore work during his off-duty period, the Supreme Court concluded that the disposable time could not be considered as working time. The Supreme Court placed particular emphasis on the fact that the response time was a few hours after assignment and that the employee remained exempt from any specific instructions until officially called out for duty. In this sense, "disposable time" differs from so-called "stand-by duty" pursuant to Section 10-4 (3) in the Working Environment Act, where an employee is obliged to be available to the employer in a way that to a greater extent restrict the individual's freedom to freely manage its time and pursue own interests.

The ruling underlines the complexity involved when assessing working time matters when the employee is not physically present at the workplace, reaffirming the principle that particular criteria, such as response time, frequency and duration of the call outs are key topics to assess.

In conclusion, the ruling is relevant when assessing whether employees disposable time may constitute working time in the meaning of the Working Environment Act Section 10-1. However, as per our view, the ruling cannot be considered guiding when assessing other categories of working time, such as travel time.