Netherlands Update: Does Start-Up Time Fall Under Working Time? The Supreme Court Gives a Definite Answer About Those Few Extra Minutes

In some professions, it is common for employers to require their employees to be present ten minutes before the start of their shift in order to carry out preparatory work. This includes storing personal items, putting on work clothes and/or logging into systems. But can this time be left outside regular working hours – and therefore (paid) working hours? That question was central to a recent case before the Supreme Court.

What was going on?

In this case, a call center employee was obliged to be present ten minutes before the start of his shift. During this time, he had to report to his supervisor and start up the necessary programs so that he could make the first phone call right at the start of his shift. However, the call center did not pay for this start-up time. The employee did not agree with this and argued that this time should be regarded as paid working time. Because the employment contract did not distinguish between the remuneration for start-up time and regular working time, he claimed an amount of €1,587.03 (gross) in overdue wages for these ten minutes. The employer defended itself by arguing that the employee was not yet performing any productive work during this period.

The assessment of the Court of Appeal of The Hague

On 2 May 2023, the Court of Appeal of The Hague granted the claim and ruled that the mandatory ten minutes of attendance before the start of the shift qualified as working time. According to the Court of Appeal, the ‘ten-minute rule’ constitutes an actual obligation for the employee, who has to perform preparatory work during this time. The fact that the employer does not check whether the employee is actually present ten minutes in advance, and that there is no sanction in the event of a minor delay, does not alter this. In addition, the Court of Appeal does not consider it relevant whether the full ten minutes are needed for the start-up or only part of it.

Judgment of the Supreme Court

The Supreme Court’s most important advisor, the Advocate General, advised on 7 June 2024 to uphold the above judgment of the Court of Appeal. The Supreme Court agreed. Unfortunately, the Supreme Court did not come to a substantive judgment and rejected the employer’s claim in cassation on formal grounds.

The importance of mandatory physical presence

This judgment shows that start-up time can only be regarded as working time if it creates an obligation for the employee. For the District Court of The Hague, it was still decisive whether the employee must be present at the office. In a ruling of 3 August 2023, the court ruled that the employee working from home could freely fill in his time until the start of the shift after starting programs. Whether that consideration still holds up is the question, given the judgment of the Court of Appeal and the advice of the Advocate General. This ruling has also been criticized in the literature.

Results for practice?

In short, employers who require their employees to comply with certain obligations before starting their shift must be aware of the possible consequences of this under employment law. The obligation to be physically present at the workplace can lead to paid working time. Since this ruling, this subject has already received the necessary attention, including from trade unions. This has already led to adjustments in some collective labor agreements, such as the introduction of a so-called ‘changing allowance’ for healthcare staff at university hospitals since the spring of 2024.

By Hocker, Netherlands, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact netherlands@transatlanticlaw.com

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