Payment for holidays

In some circumstances, time spent “on-call” is included in working time for the purposes of the Working Time Directive. Until very recently, it was established that whether or not time spent “on-call” was included within a worker’s “working time” depended on whether or not a worker was required to remain physically at or near the employer’s premises. This is the basis of several important European Court rulings that doctors on-call at a health centre or hospital are “working” throughout the time they are required to spend waiting at the workplace, even though they can spend the time sleeping, reading, resting and watching TV. Because the time spent “on-call” is working time, it follows that the doctors must be given compensatory rest. The leading case is Sindicato de Medicos v Consumo de la Generalidad [2000] IRLR 845.

This issue has resulted in significant European-level disagreement between Business Europe, the body representing employers and employer federations in European-level working time negotiations, which believes that “on-call time should not be considered working time”, and the ETUC, which argues that the favourable European Court rulings on working time should be written into the text of the Directive to avoid abuse.

A landmark case in the UK this year, Truslove & Another v Scottish Ambulance Service [2014] UKEATS/0053/JW, has moved the debate along in a development welcomed by unions. In this case, the EAT ruled that whether or not someone is “working” or “at rest” for the purposes of the Working Time Directive should depend on the extent to which, when on-call, a worker’s time is truly their own (as opposed to being under the control of the employer), rather than depending on a geographical test based on whether or not the worker is required to spend their time on-call physically at or near the employer’s premises: