It is not the first time on the Smartlegal blog that we publish a series of articles about a complex labour law topic. After our series on dismissal, we are now examining the details of another cornerstone of labour law, the working time. In connection with this topic there are also many misconceptions in the public awareness, which may cause serious financial consequences on the side of the employer. Since working time is a variable and complex topic, we will analyse it in a series of articles to give you a comprehensive picture.

1. Which questions will be examined?

In order to understand the complex system of working time, it is first necessary to clarify the basic concepts on which we can build our further knowledge. So, in our first article we will talk about the notion of working time and check which activities can be regarded as working time, and which cannot.

Then, in our second article, we will examine how much time can employees legally work, and then clarify how the amount of time prescribed for the employee can be legally scheduled, given that there are lot of misunderstandings, especially in connection with work schedules other than the general “9-5 job” (e.g. flexible working arrangement, working time banking, so-called flexible work schedules).

At the end of our series, we examine the topic of overtime, which perhaps causes the most disagreements between the employer and the employee and may even lead to an employment law lawsuit, which can have serious financial consequences for the employer.

Based on the above we will start our examination by clarifying what counts as working time and what is not. While the question may seem simple and unambiguous, you will see that there are several cases when this issue can be really complex from legal point of view.

2. What counts as working time?

a. Period prescribed for working

According to the Labour Code[1] (“LC”), the concept of working time does not mean the time spent with work effectively, but a predetermined period during which the employee must be available. If the employee complies with the obligation of availability, he/she will be entitled to remuneration regardless of his/her activity.[2]

b. Preparatory or finishing activities

Working time includes the so-called "preparatory and finishing activities". During these periods the employee does not "produce", but these ancillary activities are necessary to carry out in connection with his job. For example, sweeping up the store after opening hours or closing the cashier. Many employers "forget" to account these activities as part of the working time, while these are essential tasks.

However, if the employer wants to act lawfully, it must organise the work schedule in a way that the employees can fulfil these activities during their working time.

c. Downtime

Sometimes the work has to be suspended for reasons incurred in the operation of the employer and it can be the case that the employer cannot give any task to the employees, e.g. suspending the production at the factory due to lack of raw materials or orders.

In such a case, we are talking about downtime, which also constitutes working time and although the employee is unable to work, he is still entitled to the salary, except if the interruption of operation takes place due to unavoidable external circumstances (e.g. flooding, etc.).

3. What does not count as working time

In the following we will examine the periods that do not qualify as working time. We will see that the labour code specifies more cases than we think and there can be important differences between each case, for example in terms of remuneration for work.

a. Break

Break (e.g. lunchtime) is not part of the working time and the employee is not entitled to renumeration after this period. The LC specifies the minimum duration of the break, as well as the conditions for its allocation. The general rule is that a minimum of 20 minutes must be provided over six hours of work, and in the case of work exceeding 9 hours, an additional 25 minutes are due.

However, contrary to the above, in the case of a stand-by job, where it is possible to determine longer working time on a permanent basis due to the nature of the work, the duration of the break will be counted as working time.

It is important to note that according to legal literature, even in the case of the above job, it is necessary to grant the employee a period when he can perform the activities for which the break would serve, such as eating or cleaning.

b. Duration of travelling

The duration of travel back and forth from the place of residence or the place of stay to the place of employment shall not be considered as working time, however, if the employee has already started the work, the time spent with travelling between each establishment or travelling for another reason will of course be working time.

It is important that the above provision only applies if the employee's usual place of work can otherwise be established. The Court of Justice of the European Union has stated that, in the case of jobs where the place where the work is habitually carried out cannot be determined (e.g.: traveling agents, mobile mechanics), travel is part of working time.[3]

c. Exemption from work duty

The LC stipulates several cases where the employee is exempted from the requirement of availability and from work duty, for example, in case of donating blood, mandatory medical examination, breastfeeding, compulsory appearance before a court or other authority, conducting studies, etc…. These periods do not constitute working time since the employee is usually not even at the place of employment in such cases.

It is important that the employee may be entitled to an absentee pay in certain cases of exemption, but not in all cases, so the employer should pay attention to the detailed rules of the LC. [4]

4. Summary

Based on the above we can see that the assessment of whether an activity constitutes working time is not nearly as simple as it seems.

Working time is a predetermined period, which does not always mean a time of actual work. Downtime, as well as preparatory and finishing activities, are also considered to be working time.

However, the period of break, the time spent with travelling and the period of exemption from work duty shall not be regarded as working time.

In our next article, we will examine how much we can lawfully work and present the rules of work schedule.

[1] act I of 2012 on the labour code

[2] Bankó-Berke-Kiss: Nagykommentár a munka törvénykönyvéhez page 401.

[3] Case No. C‑266/14. of the CJEU, Tyco vs. Federación de Servicios Privados del sindicato Comisiones obreras

[4] e.g. the employee is entitled to absentee pay for the duration of donating blood, however is not if he is unable to work based on the section 146(3)b) of LC