Time “on call”





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 problematic aspects of the Working Time Directive (WTD) for employers has been the treatment of time spent waiting to see whether you will be called to work, often described as “on call” or “standby” time. Under the WTR, time spent “on call” is working time if the person on call is “working, at their employer’s disposal and carrying out their activities” (regulation 2(1)(a), WTR). 


All working time spent on call must be included when calculating working hours and working out when rest breaks are required. 



Under EU law, someone will be working when on call or “standby” if the employer is entitled to dictate where the worker must be and can require that worker to respond to provide services immediately in case of need. 


For example, doctors required to remain on hospital premises on call are working even though they are free to decide what to do with that time, for example, relaxing, sleeping, or watching TV (Sindicato de Medicos v Consumo de la Generalidad Valenciana [2000] IRLR 845). 



In Ville v Matzak [2018] Case C-518/15, standby firefighters were working when they were required to remain at home and able to respond to a call out within eight minutes. Similarly, in Truslove v Scottish Ambulance Service [2014] UKEATS/0053/13/JW, a case supported by Unite, relief ambulance drivers and paramedics on call overnight away from their home base station were working. They were required to stay within a three-mile radius of the ambulance station and to be able to respond to a call-out within three minutes.



Someone who just needs to stay in contact with the employer in case they are needed but who can decide on their own location is not working. 



In the Matzak case, the ECJ rejected a test based on the “quality” of standby time, in other words, whether workers are free to enjoy the time as they please. Instead what matters is where a worker is required to be and the speed with which they are required to of respond when called on. 




The WTD regulates time, not pay. Rest breaks and time spent “on call” or “standby” can be paid at a different rate from other time, or can be unpaid, without breaching the WTD. In the UK, a worker’s basic pay must meet the NMW hourly rate threshold, averaged across the relevant pay reference period (see the start of this Chapter). Otherwise, the employer will break National Minimum Wage law. The employer must also comply with relevant pay equality laws, for example, the Agency Workers Regulations (see Chapters 2 and 7).