Time on-call
[ch 4: pages 102-103]An adult worker is entitled to a rest period of no fewer than 11 consecutive hours in each 24 hour period or in appropriate cases, an equivalent period of compensatory rest (see page 100) which is not working time.
There has been an important new case on the working time rights of workers required to remain “on-call”. A new EAT ruling in a case supported by general union Unite has confirmed that whether someone is working or at rest when on call depends on whether their time when on-call is truly their own (as opposed to being under the control of the employer). It does not depend on whether on call workers must stay on the employer’s premises or in some other specified location, although control over workers’ location remains an important factor:
Relief ambulance drivers and paramedics were on call overnight away from their home base station. They had to remain within a three-mile radius of the ambulance station at all times and to respond to a call out within three minutes. Their time when on-call was clearly not their own, ruled the EAT, emphasising the health and safety purpose of the Working Time Directive. While on-call, the workers were not able to enjoy any relief from the stresses of their role, or the company of friends or family. The time they spent on call was clearly working time not rest.
Truslove v Scottish Ambulance Service [2014] UKEATS/0053/JW
Workers who are not allowed to remove themselves from their work environment to take rest when on-call will be working throughout the time spent on-call. For example:
A live-in residential care home manager was on call for 24-hour periods during which she was required to remain on the premises, although she could entertain freely in her room during this period. The EAT said that this was all working time.
MacCartney v Oversley House Management [2006] IRLR 514
www.bailii.org/uk/cases/UKEAT/2006/0500_05_3101.html
Doctors required to remain on the employer’s premises and available for work were engaged in working time even though they were not doing any work and were free to spend their waiting time reading, watching TV, eating and sleeping.
Sindicato de Medicos v Consumo de la Generalidad Valenciana [2000] IRLR 845, Landeshauptstadt Kiel v Jaeger [2003] IRLR 804
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:61998CJ0303
A worker can be at rest (i.e. not working) where they are required to be contactable by their employer and in a position to respond promptly but not required to remain in a specific location (Samuel Blakley v South Eastern Health and Social Services Trust [2009] NICA 62). What matters is the extent of the employer’s control over the worker while waiting (Truslove v Scottish Ambulance Service [2014] UKEATS/0053/JW).
The European Commission has been consulting for some time on changing the laws on on-call time and compensatory rest.
The rules on working time and time spent on-call must not be confused with the rules on the right to be paid the National Minimum Wage (see pages 83-90). Just because someone is engaged in working time for the purposes of the WTRs does not mean they are entitled to be paid the NMW for all those hours. It does mean that a worker who has been on-call may qualify for a period of compensatory rest before starting their next shift.