Time on-call

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:

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 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.