On Call TimePosted in : HR Updates on 4 November 2015 Issues covered:
The Working Time Regulations (WTR) places a number of obligations on employers, including:
- A worker's average weekly hours shall not exceed 48 hours per week, unless the worker has signed a valid opt-out.
- A night worker's normal working hours shall not exceed an average of eight hours per day.
- Workers have a daily rest period of 11 consecutive hours, a weekly rest period of 24 hours (or 48 hours per fortnight), and a rest break of 20 minutes when working more than 6 hours per day, unless the employer is exempt, in which case usually an employer will be required to allow the worker to take an equivalent period of compensatory rest.
In certain sectors (eg healthcare), these regulations may be difficult to comply with where workers are required to be on call for lengthy periods, often at night.
What are the Working Time Regulations for On-Call Workers?
In the WTR "working time" means "any period during which the worker is working, at his employer's disposal and carrying out his activity or duty". In the last ten years the courts have ruled that time spent on call should be included in working time.
The European Court of Justice (ECJ) in SiMAP v Conselleria de Sanidad y Consumo de la Generalidad Valenciana, found that if employees had to be present at the health centre with a view to providing their services, they were carrying out their duties. Therefore on-call time constituted working time if the employees were required to be in the workplace.
What if the on-call worker is not on-call at the place of work?
In 2006 in the case of McCartney v Oversley House Management, a care manager in a housing estate was found to be working when required to be available on a mobile phone and remain within three minutes of the site, despite the fact that much of that time was spent sleeping or relaxing in her flat.
In the case of Truslove v Scottish Ambulance Service, ambulance paramedics who worked on-call night shift duty away from their home base station, were required to take accommodation within a three-mile radius of the ambulance station. There they would park the ambulance, and have to meet a target time of three minutes to respond to a call.
The employment tribunal held in this case that while on-call the paramedics were "at rest". This decision was overturned by the EAT, in a judgement which restated that the question to be determined is whether the individual is obliged to be present and remain available at a place to be determined by the employer. It did not matter that that place was not the workplace and it was not necessary for there to be a form of near confinement to one specific location. The important factor was the fact that the employer was specifying the location and that there was a lack of freedom to be anywhere else.
A Complex Issue
There will still be cases where it is difficult to draw the line, particularly where the employee is given some flexibility over where he or she can be. As the judge in Truslove put it, "there may be circumstances in which a designated place of work is so permissively defined that it amounts to no particular exercise of the employer's entitlement to control the employee in the way he provides his services".
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