'On call' hours and working time

Does 'on call' time count towards 'working time'? Graham Richardson looks at the key considerations.

The extent to which time spent by workers “on call” is working time for the purposes of the Working Time Regulations 1998 (the “WTR”) has long been a vexed question for employers. It is an important question because a number of keys workers’ rights under the WTR hinge to a large extent in practice on what is and is not “working time”.  The maximum working week that an employee can be required to work is framed by reference to working time (although, in the case of adult workers, this is subject to the right under the WTR of the worker to opt out). Also, when the worker must be given rest breaks will to a large degree be determined by how much time constitutes working time. Is on call time working time or rest time for these purposes?

The definition of working time for the purposes of the WTR is of limited use here, since it defines working time as, among other things, “any period during which [the worker] is working at his employer’s disposal and carrying out his activity or duties”.

Is this the case during an on call period? On the one hand an on call employee is usually free to pursue certain leisure activities, but on the other hand this freedom is usually limited to a greater or lesser degree by the fact that they must be available to take calls and return to their workplace within a specified period of time.

The Truslove case

The decision of the Scottish Employment Appeal Tribunal in Truslove and Another v Scottish Ambulance Service has shed some light on this difficult question, although unfortunately it does not give all of the answers.

The Truslove case concerned two ambulance paramedics who from time to time were required to provide nightly on call relief cover at difference ambulance stations. During this time they had to stay at accommodation of their choice within a three mile radius of the relevant station. In practice this meant that they could not stay at home. They also had a target of responding to a call within three minutes.

The paramedics argued that their on call time was working time for the purposes of the WTR, but this was denied by the Scottish Ambulance Service. In considering this issue, there were two separate lines of authority which were considered by the EAT. The EAT referred to the decisions of the European Court of Justice in SIMAP v Conselleria Sanidad y Consumo de la Generalidad Valenciana and Landeshauptstadt Kiel v Jaeger which concerned on call workers required to remain at a particular location – this on call time was found to be working time.

On the other hand the EAT also referred to the decision of the Northern Ireland Court of Appeal in Blakley v South Eastern Health and Social Services Trust where an on call worker was not required to stay at a particular location but was required to remain contactable and to respond promptly.  This had been found not to constitute working time.

The position in Truslove appeared to fall somewhere between these two situations, as the employees were not required to stay at a particular place, but were subject to onerous restrictions as to where they could be and response times. Was their on call time in these circumstances working time or rest time?

The EAT's decision

Upholding the appeal of the employees against the Employment Tribunal’s original decision, the EAT considered that on call time was working time in this case.

The starting point for reaching this decision was that the purpose of the Directive on which the WTR was based was to improve living conditions and provide satisfactory health and safety conditions and working environment for employees.

The EAT said that the central question of fact was whether the individuals were required to be present at a place determined by the employer. The EAT indicated that a helpful test in determining whether this was the case was whether it could be said that the time was the worker’s own (although this test should be treated with care).

The EAT said that where a worker is required to be away from home or in some circumstances to stay at or within a very close distance from home, that time is that much less their own and all the more under the control of the employer. In these circumstance the employee is less likely to be in a position to relax in the company of family and friends, or to pursue personal hobbies and therefore they were less likely to be in a position to obtain relief from their employment where they were tied to a particular location and subject to providing an immediate response to their employer’s bidding.

Conclusion

In determining whether on call time is working time it will therefore be important to consider whether the employer is determining the place where the employee is required to be present. If the answer is yes, then this could well be working time, even if the place where the employee is required to be present is not the workplace.

It should be noted that in the Truslove case the on call employees were subject to very onerous restrictions, so it is perhaps not surprising that their on call time was found to be working time. However, the principles laid down by the EAT could in theory be extended to catch a situation where an on call employee had more flexibility but was still subject to restrictions as to their location. Whether it will be found by the Courts to catch such a situation remains to be seen. There are likely to be grey areas where employees have some flexibility but not complete flexibility as to where they can be and what they can be doing during an on call period. It will be interesting to see how future cases interpret these principles. However in the meantime the EAT’s decision may result in a variety of on call arrangements being argued by employees to constitute working time. Employers who are in any doubt as to the legal status of their on call arrangements would be well advised to take legal advice.

Finally, it should be noted that there is a further question as to whether employers who require their staff to be on call may be required to pay staff the National Minimum Wage for their on call hours. This question is outside the scope of this article, but it is another important issue for employers to consider. Again, the issue will often not be straightforward and it is recommended that any employers in doubt take legal advice.  

Graham Richardson is a Legal Director at Bond Dickinson LLP. He can be contacted on 0191 279 9456 or This email address is being protected from spambots. You need JavaScript enabled to view it..