On call hours - the legal issues

Graham Richardson considers the legal issues that arise from “on call” working, especially in relation to the National Minimum Wage and the Working Time Regulations.

In today's 24-hour culture, for an employee to be "on call" is relatively commonplace. This is often a convenient arrangement for employers, as it allows the employer to cover unpredictable fluctuations in workload that might arise, without having to require the employee to work during quieter periods.

However, “on call” working throws up a number of legal issues of which employers need to be aware. In particular, issues arise in relation to the National Minimum Wage and the Working Time Regulations. Do employees have to be paid the National Minimum Wage for hours on which they are on call, even if they do not actually do any work during that period. Does time spent on call class as working time for the purposes of the Working Time Regulations where no work is actually done?

These are questions on which we have now received some clarification in case law and it is important for employers to be aware of the legal position. The fact that the National Minimum Wage Regulations and the Working Time Regulations each take a different approach to the treatment of on call hours makes the position more complex, and it is necessary to consider each of these legal provisions separately.

National Minimum Wage

There have been a number of cases on the issue of whether an employee should receive the National Minimum Wage for being on call. The recent decision of the Employment Appeal Tribunal in City of Edinburgh Council v Lauder summarises the current legal position.

The case considered a group of sheltered housing wardens who lived in tied accommodation and were required to be on call, available to respond to overnight alarm calls in addition to their normal daily work. During the on call time they were required to be on site but free to use their time as they liked and they were not required to be awake. In practice, it was rare for the wardens to be called out.

The wardens initiated an Employment Tribunal claim and argued that they were entitled to the national minimum wage during the time that they were on call. The Employment Tribunal accepted this. However, on appeal the EAT overturned the Tribunal’s decision and found they were not entitled to minimum wage for this time. Only the time in which they were “active” attracted the rights afforded by the National Minimum Wage Regulations.

In reaching its decision, the EAT relied on Regulation 16(1A) of the Regulations which provides that where by arrangement a worker sleeps at or near a place of work and is provided with suitable facilities for sleeping, he shall only be entitled to be paid under the national minimum wage for time he is permitted to use those facilities for the purposes of sleeping when he is in fact awake for the purposes of working.

The EAT drew a distinction between “sleep in” cases where the job itself is a “sleepover job” (such as where a security guard is paid to be present at the employer’s premises through the night but is allowed to sleep between tasks), and “on call” cases where the employee is required from time to time to be on call in additional to his usual duties. In a “sleepover job”, the EAT considered that Regulation 16(1A) was not engaged, and the employee was entitled to be paid a least the national minimum wage for working the entire period, even if they were asleep for some of the time. In some cases it would be difficult to distinguish whether a case should be treated as a “sleepover” case or an “on call” case, but this was the crucial distinction to make.

Working time

Where staff are required to be on call it is important for employers to establish whether on call time is “working time” for the purposes of the Working Time Regulations 1998 (“WTR”). This is important because, except in the case of a legitimate opt-out by the worker, it is in breach of the WTR for a worker to work more than 48 hours per week on average over a specified reference period. Furthermore, under the WTR the employer is obliged to provide the worker with statutory minimum rest breaks by reference to their working time, so whether on-call time is working time is relevant in establishing when and how often rest breaks must be provided.

The ECJ considered time on call in relation to the WTR in Landeshauptstadt Kiel v Jaeger. The ECJ held that all on call time constituted working time if the employee was required to be at the premises of the employer rather than at home. This the case is even if the employee is sleeping at the workplace for some or all of the time. The very fact that the employees were required to be at the employer's premises and ready for work indicated, according to the ECJ, that they were to be regarded as carrying out their duties.

Following the ECJ's judgment, domestic decisions have largely followed suit. For example, in Davies v London Borough of Harrow, a tribunal decided that resident wardens were engaged in working time when they were not allowed to leave the site. As a result, this meant they were engaged in working time 24 hours a day from Monday to Friday. Following the tribunal's decision, the employer was reported to have changed its policy so that the wardens were allowed off site at certain times so long as they were contactable and able to be back on site within 30 minutes.

Similarly, in MacCartney v Oversley House Management the tribunal considered the case of a live-in warden in a sheltered accommodation complex. The warden was required to be available on site to answer calls 24 hours a day four days a week. She was allowed to have visitors and undertake other recreational activities in this time, so long as she remained within three minutes of the site. The EAT considered, in light of Jaeger, that the warden was engaged in working time for 24 hours a day, four days a week. Despite the fact that the warden was effectively “at home” during this time, the EAT regarded this as irrelevant. Instead, the crucial question was whether the employee was required to be present and available at a place determined by the employer. If so, then this counted as working time for the purposes of the WTR.

A crucial factor in determining “working time” therefore appears to be whether there is a requirement that the employee be at a specific place and available to work, regardless of the fact that they may be at home, asleep or engaged in their own recreational activities. There has been some discussion at European level as to whether the Working Time Directive (the European legislation on which the Working Time Regulations are based) should be amended to clarify the position, but no agreement has been reached as yet.

Conclusion

Where an employee is to be offered on-call hours, the knock-on implications of this need to be carefully thought through. In particular organisations will need to consider whether the time spent on call is time during which entitlement to the National Minimum Wage accrues and, separately, whether it should be treated as working time for the purposes of the Working Time Regulations. As two different tests apply, the answer to one may be different from the answer to the other. When in doubt, and when drafting up contracts of employment for these staff, employers would be well advised to take specialist legal advice to ensure compliance with the law.

Graham Richardson is a Director at Dickinson Dees LLP. He can be contacted by This email address is being protected from spambots. You need JavaScript enabled to view it..