Call me…or don’t call me but it’s still ‘Working Time’

The Working Time Regulations 1998 (WTR) provide certain restrictions on how much time a worker can spend working.  For example, workers are entitled to a minimum rest period of 11 consecutive hours in each 24 hour period (or in some circumstances an equivalent period of compensatory rest).  Over the years, the courts and tribunals have grappled with the issue of ‘working time’ which is defined by the WTR as “any periods during which the worker is working, at his employer’s disposal and carrying out his activities or duties”.  One of the particular issues which has been debated before the courts is whether working time includes time when workers are ‘on-call’ but not actually carrying out any activities or duties.

The Employment Appeal Tribunal (EAT) recently addressed this specific issue in the case of Truslove and another v Scottish Ambulance Service.   This case concerned two paramedics who were required to provide nightly cover from time to time at two locations away from their usual base.  For any periods when they were required to be providing nightly cover, the paramedics were required to be on-call and had to stay in accommodation within a three mile radius of the location which they were covering.  They did have freedom of choice on the accommodation but that was subject to the three mile radius restriction.  This arrangement resulted in them working a daily shift from 8am until 6pm, followed by a night shift where they remained on-call from 6pm until 8am.  This arrangement continued on one occasion for four straight days, totalling 97 consecutive hours.  The workers argued that the time spent on-call was working time and claimed that the employer had breached the requirement to allow the minimum rest periods of 11 hours in each 24 hour period.

The EAT agreed with the paramedics and overturned the decision of the employment tribunal (which had originally decided that the on-call time was not working time).  The EAT took into consideration the purpose of the WTR and UE Working Time Directive which were aimed at ensuring a healthy working environment.  The EAT went on to observe that the question of whether an individual on-call is working or resting will turn on whether the individual is required to be present and available at a place determined by the employer.  The paramedics required to be within a three mile radius as determined by the employer and thus could not be home enjoying the quality of rest to which they were entitled.  Their on-call time was accordingly working time and the employer had breached their obligations in respect of rest periods.

This case makes it clear that working time will include time spent on-call in circumstances where the employer imposes certain freedom restricting constraints on the worker (such as a requirement to be within a particular geographical location).  Employers who operate on-call working arrangements should reflect on their practices as a result of this decision and assess their obligations under the WTR to allow sufficient periods of rest.  Employers should also be aware that in many cases, such on-call working time will also require payment of the National Minimum Wage for the duration of the on-call period.

Jack Boyle
Senior Solicitor – Employment Law

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