What is working time? The “on-call” debate continues…
Under the Working Time Regulations 1998 (“WTR”), “working time” is defined as any period where a worker is “working, carrying out his duties and at the employer’s disposal”. Case law on the issue of “on-call” working, has determined that “working time” includes:
a) where workers are required to remain at a workplace and be available for work, even if they are able to sleep;
b) where workers are “required to be present at the place determined by the employer”.
Converseley, in Blakley v South Eastern Health and Social Services Trust it was held that a worker is capable of being on a rest period where they are required to be in a position to respond promptly but are not at a specific location determined by the employer.
In the case of Truslove & ors v Scottish Ambulance Service the Claimants were paramedics. They were required to be on-call, staying within a three-mile radius of the ambulance station and had a target of responding to calls within three minutes. This meant that they could not stay at home whilst on-call.
The Employment Tribunal (ET) had to consider whether their time on-call was “working time” for the purposes of WTR, or whether this constituted a rest period.
The Employment Appeals Tribunal (EAT) upheld the appeal and held that the on-call was “working time”.
The EAT was careful to state that the test was not strictly whether the worker had been asked to work in one specific location by the employer - this was just one factor of importance. It was necessary to consider whether there was a degree of “confinement” and if the worker had a “lack of freedom to be anywhere else”.
The EAT focused on the health and safety purpose of the EU Working Time Directive (from which the WTR are derived) which is to provide satisfactory and safe working conditions for employees. The quality of rest time was key – could the employee could “unshackle himself from the rigours of the employer’s control”?
This case widens the scope of what is regarded as “working time” for on-call staff under the WTR. Practically, careful consideration must be given to daily rest periods, night working limitations and also to ensure that employees are receiving National Minimum Wage for such “on-call” hours.
For employers, a key consideration will be to look at the degree of freedom that workers have whilst on-call to apply a common-sense approach as to whether the time could be considered as quality rest or not.
For example, if a worker was told “not to travel abroad” whilst on-call it is unlikely this will limit the employee’s freedom to the extent that his on-call time is classed as “working time”. There may be other less extreme examples – being free to remain at home whilst on call will arguably constitute a rest period, however there may be other factors which need considering which might affect the workers’ quality of rest e.g. a limited travel radius.