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Working time under the WTR Regulations
[ch 9: pages 151-152]Working time is defined as:
• any period during which a worker is working, at the employer’s disposal and carrying out his or her activities or duties;
• any period during which s/he is receiving relevant training; and
• any additional period which is to be treated as working time under a relevant agreement (which can include a contract of employment).
Working time includes travelling time where it is part of the job. It does not include travelling between home and work, lunch breaks, evening classes or day-release courses.
Time spent “on-call”
Working hours can include time on-call, provided that the employee has to remain on the employer’s premises, even if s/he is not obliged to work. It is only when someone is on-call but not required on the premises, that hours on-call are not counted.
In Sindicato de Medicos v Consumo de la Generalidad [2000] IRLR 845, doctors were on-call at a health centre during their period of duty. They were not permitted to leave, although they could read, watch TV, rest or sleep. The European Court of Justice (ECJ) held that this time must be considered entirely as working time.
In a similar ruling, the ECJ held that a doctor who slept at the hospital and who rarely spent more than half of the time on-call actually working could include all of that time as working time. This meant he was entitled to compensatory periods of time off immediately following the time on-call (Landeshauptstadt v Jaeger [2003] IRLR 804). These rulings were later upheld in a further important ECJ decision, Abdelkader Dellas and others v Premier Ministre (Case C-14/04).
In response to these rulings, employers have been arguing for a change to the Directive. Employers want to introduce a concept described as “inactive on-call time”, in which time spent by a worker when on-call at the workplace but not required to carry out duties, would not be regarded as working time unless otherwise agreed. Unions have strongly resisted such a move. The European Trade Union Confederation (ETUC) continues to argue for these favourable ECJ decisions on “on-call” time to be written directly into the Working Time Directive through an amendment of the text. This would strengthen the position of workers, especially vulnerable workers who lack effective collective representation. Negotiations between the ETUC and Business Europe on a revision to the European Working Time Directive, including the definition of “on-call” time, took place throughout 2012 but failed to reach agreement.
A landmark case in the UK, Truslove & Another v Scottish Ambulance Service [2014] UKEATS/0053/JW, 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:
Relief ambulance drivers and paramedics were required to work on-call overnight away from their home base station. They were required 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 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 & Another v Scottish Ambulance Service [2014] UKEATS/0053/JW)
The European Commission issued an online public consultation in December 2014 (which ran until March 2015) asking how the Working Time Directive (WTD) should be changed. The responses will contribute to an ongoing review and assessment of the impact of the WTD on workers, employers and services across Europe. The Commission is expected to propose new legislation in early 2016.
In its response, the physiotherapists union CSP called for a strengthening of the Working Time Directive in light of a rise in zero hours contracts to ensure “maximum protection of workers”. It wants work-related travel and training to be counted as working time. It also argued that the rules should explicitly state that workers should receive paid compensatory rest for working extra hours.
More information about the consultation can be found at: http://ec.europa.eu/social/main.jsp?catId=333&consultId=14&visib=0&furtherConsult=yes&langId=en
Unmeasured time
The limits on working time in the 1998 Regulations do not apply to work whose duration “is not measured or predetermined or can be determined by the worker himself”. This exemption is designed to cover managing executives and others with autonomous decision-taking powers, as well as family workers and workers officiating at religious ceremonies.