As we approach the summer holiday period, we need to ask staff to be ‘on call’ to cover gaps in our staff coverage due to annual leave. Some staff have questioned whether they can be made to work on call and if they need to be paid extra. How do I handle it? 

On call or standby working is common in many industries and there are different approaches to the exact working arrangements and pay. When we refer to “on call” work, we mean a requirement for employees to be available for work, though not necessarily actually working, for a set period outside their normal working hours, often at night or during weekends. Introducing an on-call working requirement engages with a number of different employment law considerations. 

The primary question is whether your employees are already required to work on call when requested. The starting point will be their employment contracts. Ideally, there will be a contractual requirement for employees to work on call when needed, either on request or following an on-call rota. 

If this is the first time you have considered introducing on-call work, it is unlikely that this requirement is already included in your employment contracts. The current “hours of work” clause may contain a general obligation to work additional hours as needed to perform their duties. However, it is unlikely that you could rely on this clause to require employees to work on call. 

This means that you will need to agree a contractual change with employees to introduce the requirement for on-call work into their terms and conditions of employment. Their agreement needs to be supported by “consideration” i.e. they must receive a monetary or non-monetary benefit in return for their agreement, to ensure the change is legally effective. This consideration could be the on-call payments offered in return for the on-call work. Agreement to the change should be captured in a letter varying the employees’ existing terms and conditions of employment.

There are no specific rules in the UK on pay arrangements for on call work. However, offering attractive payment terms will usually result in much quicker agreement from employees, and greater buy in when asked to participate in any rota, especially if they would be required to work inconvenient or antisocial hours. 

The specific payment arrangements can be dictated by a non-contractual on-call allowance policy. This is intended to allow you to change the specific payment arrangements or amounts over time. Some employers pay a flat rate for the entire shift, or a set payment only when work is actually required, or a mixture of these. You should consider how on-call work can be monitored and recorded. 

You must ensure that employees receive at least the National Minimum Wage during the relevant pay reference period where they have worked on call. This assessment is based on the employee’s total pay for their “working time”. For NMW purposes, working time includes any hours where the employee is both available for work and required to be at or near their workplace. However, time spent at home, or sleeping in designated facilities, is excluded. NMW compliance can become quite complex depending on your exact arrangements but should only be a material risk if employees are paid close to the NMW already or will complete a sufficiently large amount of on-call work.

Similarly, you should consider whether the on-call work counts as “working time” for Working Time Regulations (NI) 2016 purposes. For this purpose, working time will include time spent actually working plus time where you exercise sufficient control over the employee’s activities, location or time. It will not usually include time where the employee is not required to be at a particular location and can choose how to spend their time. As with NMW compliance, this assessment can become quite complex depending on your exact arrangements. Employees will need to agree to opt out from the maximum weekly working hours limit if they will exceed 48 hours per week on average. You should also consider the wider impact on working time compliance points such as rest breaks, annual leave accrual and holiday pay calculation. 

You will need to consider how to deal with employees who do not agree to your proposals. The safest approach is to respect their decision, though this will naturally impact your coverage and the demand placed on other employees. You could consider implementing the requirement without their express agreement. You would have to rely on them working on-call as implied acceptance, with the on-call allowance still acting as consideration for the change. 

However, employees could still refuse to work on call or work under protest. If you then discipline or dismiss these employees, there is a clear risk that they will challenge your approach, whether through appealing disciplinary decisions, raising grievances or bringing unfair dismissal claims (including for constructive dismissal). This makes securing employee agreement in the first place the most preferable option, both in terms of legal risk and managing employee relations.