"On call" time - a round up

Those employers who retain staff who spend periods of time "on call" may well be familiar with the significant line of case-law under the Working Time Regulations 1998 ("the WTR") and the National Minimum Wage Act 1998 (("the NMWA") which grapple with how periods of time spent "on call" should be treated.

The position is not straightforward. This article sets out the current state of play by reviewing some recent case-law and deals with issues raised under the WTR and the NMWA.

On call time under the WTR

The WTR places a number of obligations on employers including the following:

• employers are required to take all reasonable steps to ensure that a worker's average weekly hours shall not exceed 48 hours per week, unless the worker has signed a valid opt-out;
• employers are required to take all reasonable steps to ensure that a night worker's normal working hours shall not exceed an average of 8 hours per day; and
• employers must allow workers 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 (e.g. healthcare), these regulations may be difficult to comply with where workers are required to be "on call" for lengthy periods, often at night. 

In the WTR "working time" for these purposes means "any period during which the worker is working, at his employer's disposal and carrying out his activity or duty".   On a first reading, one might be tempted to interpret those words to mean that time spent merely "on-call" is not time spent carrying out one's "activity or duty", but that has not been the interpretation of the courts.    

The European Court of Justice looked at this issue in the Spanish case of SiMAP v Consellerria de Sanidad y Consume de la Generalidad Valenciana [2000], involving doctors who spent time on call at a health centre.  In that case, the ECJ found that the fact that the employees had to be present at the health centre with a view to providing their services meant that they were carrying out their duties.  Therefore on-call time constituted working time if the employees were required to be in the workplace.  In contrast, in SIMAP, if employees only had to be contactable, time spent on call away from the health centre did not count as "working time", unless the doctors were actually called upon to provide primary care services. 

This case has been followed and developed in subsequent case-law which has made clear that the decisive factor in determining whether on-call time is "working time" is the requirement to be present at a place determined by the employer. It does not matter whether some or all of that time is spent sleeping if the employee is required to be in a specific place.   That was confirmed in the UK courts by the EAT in the case of MacCartney v Oversley House Management [2006], where a care manager in a housing estate was found to be working when required to be available on a mobile phone and remain within 3 minutes of the site, despite the fact that much of that time was spent sleeping or relaxing in her flat.    

The issue was also considered in the recent Scottish case of Truslove v Scottish Ambulance Service [2013], which concerned ambulance paramedics who worked on-call night shift duty away from their home base station. On such occasions, they were required to take accommodation within a three mile radius of the ambulance station, at which they were to park the ambulance, and were then to meet a target time of three minutes within which to respond to a call. 

The Employment Tribunal held in this case that whilst on call the paramedics were "at rest".  This decision was overturned by the EAT, in a judgment 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.

There will still be cases where it is difficult to draw the line, particularly where the employee is given some flexibility over where he 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."  The example was provided of where an employee is forbidden from going abroad during on-call time, which would not be enough of a restriction in itself for the time to be "working time".  But there will doubtless be other examples where the line is less easy to draw.   What if for example an employee is required simply to remain in a particular city, but are otherwise free to do as they please?  Or where an employee needs to stay within an area with mobile telephone signal or is not allowed to consume alcohol as he/she may need to drive or carry out other duties?  In those circumstances, the court may be asked to make a judgment over whether such restrictions on an employee's activities are enough for the time to become "working time".   The line will not always be easy to draw in any particular case.  

On call time under the NMWA

The relevant test for time spent working is different under the NMWA to that under the WTR.  

There are special rules in the National Minimum Wage Regulations which provide that where a worker is not actually working, they are treated as working if they are available and are required to be available at or near a place of work, except where: -

• the worker's home is at or near the place of work and the time is time the worker is entitled to spend at home; or
• where the worker sleeps by arrangement at or near a place of work and is provided with suitable facilities for sleeping, time during the hours they are permitted to use those facilities for the purposes of sleeping shall only be treated as working time when the worker is awake for the purposes of working. 

So, in summary, where a worker is on call at or near the workplace the on-call time is generally treated as working time, except that time spent on call at home does not count as working time and time spent on call at or near work with sleeping facilities only counts as working time if the worker is "awake for the purposes of working".   

But, remember that those rules only apply to deciding whether a worker who is merely available for work should be treated as working.  Much of the case-law in this area has focussed on whether an employee is actually working where being present is in itself part of the job the individual is employed to do.    

For example, in the recent case of Esparon v t/a Middle West Residential Care Home v Slakikovska [2014], the EAT upheld a Tribunal decision that a care-worker at a residential care home who was required to work a number of "sleep-in" shifts and be available for emergency purposes was working and entitled to be paid the national minimum wage during the whole of her shift. 

The judge considered carefully the reason why the care worker was required to be on the premises, which in this case was at least in part to comply with regulatory requirements for a suitably qualified person to be present.   The judge made clear that where an employee is on the premises pursuant to a statutory requirement to have a suitable person there "just in case" that will be a powerful indicator that they are being paid simply to be there. In those circumstances it is likely that they will be deemed to working regardless of whether any work is actually carried out.   In contrast, the judge in Esparon referred to other case-law examples (involving for example housekeepers or pub managers) where, although the employees were required to sleep on the premises while on call, they were not working whilst doing so, albeit had to be available for work.   Again, this is a tricky distinction to make in practice and the cases are not always easy to reconcile.

Conclusion

It is clear from the amount of litigation is this area that there is still uncertainty over the rights of "on-call" workers in any given case.   A great deal of the case-law relates to care-homes and the healthcare sector, but many other businesses are potentially affected, including hotels, boarding schools and any business which requires round the clock emergency cover.  Historically employers in many of these sectors may not have expected to need to pay national minimum wage for all on-call time, nor have properly considered their obligations under the WTR.   Many employers therefore continue to be at real risk of potential claims, as this remains a fertile area of litigation.

This article was first published by Croner on 10 November 2014