Do On-Call Shifts and Waiting Time Count as Working Time?

A worker waiting in the warehouse for the next route, an on-call technician who cannot leave the hospital, a sales rep keeping an eye on the phone on a Sunday. Is that time working time or not? The answer decides whether it has to be paid, whether it counts towards working-time limits and, increasingly, whether it has to be recorded. And it is not the same for all three cases.

What counts as working time

The starting point is article 34.5 of the Spanish Workers’ Statute: working time is measured so that the worker is at their workstation at the start and at the end of the working day. Short, but not enough for the tricky cases.

What fills the gap is European law. Directive 2003/88 and now settled case law of the Court of Justice of the EU define working time by three features that must all be present at the same time: the worker must be at work, be at the employer’s disposal and be carrying out their activity or duties. The practical key lies in the second. Being at the employer’s disposal means not being able to use the time for one’s own affairs with the freedom of someone who is off duty.

Waiting time when you are at the employer’s disposal

Waiting is the clearest case and the one that generates the most rulings. If the worker waits within operating hours for the employer to assign the next task, they are not resting: they are holding themselves available for the employer.

The High Court of Justice of the Basque Country confirmed this in ruling 2591/2026, which dismissed a transport company’s appeal and ordered it, with costs, to pay more than 12,000 euros for excess working time. The fact that decided the case was a matter of legal common sense: all the periods the company called rest fell between the opening and the closing of the daily activity, and at the end of each one there was a delivery or a load. The court reasoned that if actual work followed the supposed break, the worker had never stopped being at the employer’s disposal.

A word of caution is in order. Transport is governed by a special regime, Royal Decree 1561/1995, which distinguishes actual working time from stand-by presence time and leaves it to collective agreements to set how each is paid. Outside transport there is no such intermediate category, so waiting time at the employer’s disposal usually counts directly as ordinary working time. The underlying conclusion holds in both cases: time at the employer’s disposal is not free time.

On-site on-call shifts and stand-by on-call shifts

This is where companies get it wrong most often, because they treat every on-call shift the same when they are not.

The on-site on-call shift, where the worker has to stay at the workplace or at a location imposed by the employer, is working time in full, even if for much of it they do nothing. The CJEU settled this years ago in the SIMAP and Jaeger cases on healthcare staff: if you have to be physically there, every hour counts.

The stand-by on-call shift is different. If it is enough to be reachable by phone and to turn up if called, the general rule is that only the time of actual call-outs counts. But the European Court itself qualified that rule in the Matzak case and in the Radiotelevizija Slovenija ruling: when the response conditions are so demanding that in practice they prevent the worker from organising their free time (for example, a very short maximum time to report in), the whole on-call shift may come to be treated as working time. There is no automatic answer; you have to look at the actual degree of restriction.

The stand-by availability that does not always count

Simply being reachable, with no obligation to turn up immediately or to stay at a specific place, tends to fall outside working time. The line is crossed when availability stops being theoretical and starts to condition the worker’s life. The more constraints the employer imposes (speed of response, having to stay in a given area, frequency of call-outs), the closer that availability comes to actual working time. It is an assessment of intensity, not a label.

Why these periods have to be recorded

The fact that a period counts as working time has an immediate consequence for the record. Article 34.9 of the Statute requires each worker’s daily working time to be recorded, and that record must reflect actual working time. If waiting periods or on-site on-call shifts count, leaving them out of the record means recording incorrectly.

The draft of the new Royal Decree goes further and expressly mentions waiting time and stand-by time within the minimum content of the record. The direction is clear even though the text is not yet final.

And there is a risk that goes beyond an Inspectorate fine. When a worker claims those hours and the company has no record that breaks them down, the courts resolve the doubt in the worker’s favour. The Basque ruling is an example: without a record separating driving, loading and waiting, the company could not rebut the claimant’s calculation and ended up paying the full amount claimed plus interest.

How to set the record up properly

The practical lesson is that the record cannot be limited to a clock-in and a clock-out. It has to make it possible to distinguish which part of the working day is actual work, which part is waiting or on-site presence and which part is genuine rest, because both pay and the defence against a claim depend on that distinction.

In Cleverfy this is handled in the configuration itself. You can define breaks that count as working time (waiting time at the employer’s disposal, an on-site on-call shift) and breaks that do not count (lunch, a genuine rest), set limits for each type and let the system separate them automatically in the daily calculation. The worker clocks in from wherever they are at any given moment (browser, mobile app, WhatsApp or a shared tablet in kiosk mode) and each segment is recorded with its nature, to the hour and minute, and cannot be altered afterwards without leaving a trace. That breakdown is exactly what a judge wants to see when the question is whether a waiting period was working time or not. You can try it free for 14 days or check what to demand from time-tracking software before deciding.

If you want the full framework of the obligation, you will find it in the guide to the Royal Decree on time tracking and in the detail of the penalties for not recording working time.

⚠️ Regulatory status (September 2026): the new Royal Decree on digital time tracking is still going through the legislative process and has not been published in the BOE. References to its content are based on the known drafts and may change.

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Reference information, not legal advice. For a specific case, consult a professional.

Sources: Spanish Workers’ Statute (arts. 34.5 and 34.9), Directive 2003/88/EC, Royal Decree 1561/1995 on special working days, and STSJ Basque Country 2591/2026 (ECLI:ES:TSJPV:2026:2591).