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Time on-call
[ch 4: pages 117-118]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 which is not working time.
In some circumstances, time spent “on-call” waiting to see whether you are to be called to work counts as “working time” and must be included when calculating a worker’s right to a daily rest break or compensatory rest.
Under European law, workers who are not allowed to remove themselves from their work environment to take rest when on-call are engaged in working time throughout the time spent on-call, however they choose to spend that time. For example:
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
www.bailii.org/eu/cases/EUECJ/2003/C15102.html
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
In 2014, the Scottish EAT ruled, in an important case supported by general union Unite, 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 necessarily depend on whether on-call workers are required to remain on the employer’s premises, or in some other specified geographical location, although control over workers’ location is 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 in a position 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, these 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
Further clarification came from the ECJ ruling in the Tyco case in 2015 (facts on page 116). In this case, the ECJ confirmed that under the Working Time Directive, time is either “working time” or a “rest period”. The two states are mutually exclusive and there is no middle ground. Either someone is “working” , or they are “not working” and are at rest.
The European Commission has been consulting for some time on changing the laws on on-call time and compensatory rest, including a year-long online public consultation from 2014-15.
It is important to be aware that there is a difference between “working time” under the Working Time Directive and “working time” under the National Minimum Wage regime, where different rules apply (see page 98). Time spent “on-call” may be working time for the purposes of the Working Time Directive, but this will not always mean that workers will be entitled to be paid extra for that time, as long as the employer is meeting national minimum wage obligations (see Federacion de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL [2015] EUECJ C-266/14).