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Time “on-call”
[ch 4: pages 126-127]As explained above, 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.
One of the most controversial aspects of the Working Time Directive has been the treatment of time spent waiting to see whether you are going to be called to work, often described as “on-call” time. In summary, if this time satisfies the statutory definition of working time, it must be included when calculating working hours for the purposes of a worker’s right to a daily rest break or compensatory rest. Any period when a worker is working, at their employer’s disposal and carrying out their activities or duties is working time (regulation 2(1), WTR).
Under EU law, workers who are not allowed to remove themselves from their work environment to take rest when on-call are “working” 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
http://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 is truly their own, as opposed to being under the control of the employer. It does not depend on whether on-call workers are required to remain on the employer’s premises, or in some other defined geographical location, although an employer’s control over location is one 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 be 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
An ECJ referral in Ville de Nivelles v Matzak C-518/15 will decide whether under EU law, firefighters are working when "on call" at home but with a duty to respond in eight minutes. The European Commission has been consulting for some time on changing the laws on on-call time and compensatory rest with a new Working Time Directive, but these plans currently appear to be on hold.
It is important to bear in mind that the cases in this section all concern “working time” under the Working Time Directive. Different rules are used to determine whether someone is “working” for the purposes of the national minimum wage (NMW). Nevertheless, these cases are important for low-wage workers, because a worker’s basic pay must meet the NMW hourly rate threshold for all hours spent working, or else the employer will break the law.
While the Working Time Directive is based on EU legislation, national minimum wage laws are unaffected by EU law.