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Are you ‘Working’ While On-Call?

Jan 14, 2015

Ambulance workers who were required to stay in accommodation within three miles of the ambulance station while on-call were deemed to be ‘working’ for this period, the Employment Appeals Tribunal (EAT) has ruled.

Under the Working Time Regulations (WTR), ‘working time’ is defined as any period during which a worker is:

  • Working,
  • Carrying out their duties, and;
  • At the employer’s disposal.

The European Court of Justice has held that where a worker is obliged to remain in the workplace and available for work with a view to providing services, this constitutes working time and is not a rest period, even if the worker is asleep at the workplace for some or all of that time (SIMAP v Conselleria de Sanidad u consume de la Generalidad Valenciana).

Ambulance paramedics sometimes had to provide overnight relief cover at different ambulance stations. During this on-call time their target was to respond within three minutes. The paramedics had to stay at accommodation of their choice within three miles of the ambulance station. The locations of the stations meant that the paramedics could not stay at home.

An employment tribunal held that the paramedics’ on-call time should not be regarded as working time and so was a rest period for the purposes of the WTR. The paramedics issued an appeal which was upheld by the EAT.

The EAT noted that the tribunal had not identified the principle by which ‘work’ was to be distinguished from ‘rest’. In the EAT’s opinion, the principle established in the case of Jaeger states that the question of whether an individual on call is at work or at rest, turns on whether he or she is obliged to be present and available at a place determined by the employer. The EAT then considered it would be more helpful to ask whether the employee’s time is ‘his or her own’. If, as in this case, a worker is obliged to be away from home, the time is less their own and more under the control of the employer.

The EAT decided that the on-call time spent by the paramedics when they were required to be away from home and at a particular location in a particular place could not be said to be ‘their own’ time. For the purposes of the Regulations, they were working throughout their on-call time and not at rest.

As highlighted by this case, the definition of ‘working time’ is not confined to the conventional circumstance of employees attending their employer’s office or work site. If employees are subject to geographical restraints during on-call time, then the time spent away from home would also fall within the definition of ‘working time’.

Employers should be aware of what constitutes working time to ensure that all staff are permitted the necessary amount of rest breaks in accordance with the regulations, and are paid at least the National Minimum Wage for such time. 

If you have any queries relating to ‘working time’, please call Darren Hayward on 01279 755777 or email dmh@nockolds.co.uk


Darren Hayward

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Darren Hayward

Darren joined Nockolds in 2003 and is the firm’s Managing Partner and Partner in charge of our Employment Law Team. 
 
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