Is ‘on call’ time working time? The Working Time Directive (incorporated in the UK as the Working Time Regulations 1998) has been under the microscope recently, particularly in relation to travel time (because neither the Working Time Directive nor the Working Time Regulations comment on travel time to and from work). This article looks at a recent European case that considered whether time spent on call constitutes working time.
Rudy Matzak was a retained (volunteer) firefighter in the town of Nivelles, Belgium. He was required to:
- Be on call for work once every four weeks (during evenings and weekend); and
- When on call (that is, during periods when on call but not called upon to carry out any duties), remain contactable, report to the fire station when necessary and to be no more than eight minutes travelling distance from the fire station.
Mr Matzak was only paid for the time he was active carrying out duties, and not for the time he spent on call where he was available but not required to do any work. Mr Matzak didn’t like the fact he wasn’t being paid for when he was on call (among other issues) and brought court proceedings in the Belgium courts.
The Belgian Court requested assistance from the European Court as to whether Mr Matzak’s time spent on call constituted working time.
The Court of Justice of the European Union (CJEU) said that Mr Matzak’s on call time must be regarded as working time. The big factors for the CJEU were:
- Mr Matzak’s obligation to remain physically present at the place determined by the employer; and
- The requirement for Mr Matzak to be no more than eight minutes away from the fire station, thereby severely restricting his ability to carry out other personal and social interests.
This case illustrates that the time spent on call for workers can count as working time. The implications are that (1) workers who are on call could be entitled to the Minimum Wage (for the hours that they are on call for); and (2) it could affect the workers entitlement to breaks under the Working Time Regulations.
Whilst this decision doesn’t provide many absolute answers, it does indicate that (1) an employer’s control over where a worker will be when on call; and (2) restrictions on a worker’s ability to carry out personal and social activities when on call, are factors that European Courts will take into account when assessing whether on call time counts as working time.
This decision has provided more substance as to when on call time constitutes working time for the purposes of the Working Time Directive (and Working Time Regulations 1998). Employers should therefore take into account the above two factors when making arrangements for their workers to go on call.
Case report: Ville de Nivelles v Rudy Matzak
By Zahid Reza
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Ms Donelian started working for Liberata UK Limited in 1999, from 2004 she worked as a Court Officer. From around September 2008, Ms Donelian started to arrive at work late, leave early or take days off at a time (sometimes without notice). In one year, she was absent for a total of 128 days. She gave numerous reasons for her absence, including stomach upsets, wrist pains, head colds, stress and anxiety. To investigate Ms Donelian’s absences, Liberata did the following:
- Referred her to Occupational Health – The OH report concluded that she wasn’t disabled but it did not answer some of the questions put to the doctor;
- Obtained a more detailed report from a second doctor – This report didn’t respond properly to all of Liberata’s questions either;
- Corresponded with her GP; and
- Held return to work meetings.
In October 2009, Ms Donelian was dismissed for (1) bad attendance; (2) failing to comply with absence notification procedures; and (3) failing to work her contractual hours. Ms Donelian brought a number of claims in the Employment Tribunal (‘ET’), one of which was for a failure to make reasonable adjustments (that is, adjusting the attendance expectations).
The ET found that Ms Donelian was disabled, but dismissed the reasonable adjustments claim because Liberata didn’t know she was disabled. It was accepted that Leberata had no actual knowledge; the case turned on whether or not Liberata had constructive knowledge (that is, whether it should have found out, based on what it did know). The ET thought Liberata had done what it could reasonably be expected to do to discover any disability. Ms Donelian appealed to the Employment Appeal Tribunal, who upheld the ET’s decision. She further appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal, concluding that Liberata did not have constructive knowledge of the disability. Its rationale was that an employer must have constructive knowledge of all three legal elements of a disability; which are (1) an impairment; (2) the prognosis; and (3) the effect on the employee’s ability to carry out normal day-to-day activities.
The case illustrates the importance of employers undertaking thorough investigations when looking into whether or not their employees have a disability. This will greatly assist in avoiding disability discrimination. This is because the more thorough the investigation, the better the chances are of employers both discovering and dealing appropriately with employees who have disabilities. Additionally, in the event an employer does not discover a disability, a thorough investigation can act as evidence of an employer legitimately not having constructive knowledge of the disability and thus avoiding liability for disability discrimination (like in this case).
By Zahid Reza
Image used under CC courtesy of Sherwood
The key points from the report (produced by the independent polling organisation YouGov) are as follows:
- Half of employers believe pregnancy in the workplace is an ‘unnecessary cost burden’
- 40% claim that women in their workplace ‘take advantage’ of their pregnancy
- Employers in finance were twice as likely as to hold negative views about the commitment of pregnant employees
- Research suggests that 54,000 new mothers are forced out of jobs every year because of maternity discrimination.
- The report states ‘it is clear that many employers need more support to understand the basics of discrimination law and the rights of pregnant women and new mothers’
Perhaps the most interesting finding is that six in 10 employers (59%) agree that a woman should have to disclose during the recruitment process whether she is pregnant. It also shows that there are pockets of employment law that employers don’t really understand.
The Equality Act 2010 protects employees from pregnancy discrimination within the workplace on the basis of being pregnant or maternity leave. Yet despite the last eight years of the Act being in force, employers are still discriminating against pregnant women today.
The research shows that women at job interviews are regularly asked questions about starting a family in the future. A recent survey of more than 1,000 British employers identify that six in ten believe women should have to disclose at interview whether they are pregnant and those employers revealed if those women are pregnant, they are reluctant to hire those who are.
Unbeknown to many British employers, those who ask potential applicants about their future family plans could be in breach of pregnancy discrimination provisions under the Equality Act 2010.
By Ava Bannister
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The Charity ‘Kick It out’ has reported an increase in discrimination across English football. So far this season, 111 incidents have been reported to Kick It Out from the top four English leagues. 64 incidents were from the Premier League (compared to 40 this time last year), with 47 being from the Championship, League One and League Two (compared to 29 this time last year). Incidents of discrimination across the top four leagues has rose by 38% compared to this time last year. Across professional football, 51% of reported incidents concerned racism.
Chair of Kick it Out, Lord Ouseley said:
“Our latest statistics reveal a significant increase in incidents of discrimination in football, which should act as a wake-up call to everyone in the sport”.
Does the law protect professional footballers as employees?
In 2013, legal provisions were removed which meant that employers were no longer liable for third party discriminatory harassment against their employees.
Before 2013, an employer could be liable for third party discriminatory harassment if they failed to take reasonable steps to prevent discriminatory harassment from a third party to their employee, provided that the employer knew the employee had been harassed by a third party on at least two previous occasions (whilst in the course of employment). This means that employers are no longer expected to ban troublesome, racist, clients for fear of facing discrimination claims from staff, for example.
Where does that leave discrimination in English football? At the moment, clubs are not liable for the actions of fans (who are a third party) if they abuse their footballers in stadiums. Maybe if the pre-2013 provisions were re-introduced, the risk of liability for football clubs would ensure that all football clubs across all levels take big steps to prevent their players being discriminated against on the football pitch. This could heavily contribute to eradicating discrimination in English football.
By Zahid Reza
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When bringing a discrimination claim, the time-limit is 3 months, less a day, from the discriminatory act. This is clear-cut where it is just a single act of discrimination complained of. However, in cases where it is alleged an act or acts extends over a period of time, it is from the final act in that sequence that the clock starts to tick. Often there can be a fine line between a single act with continuing consequences, and a continuing act.
In a recent case, one of the key questions was whether each act taken within the disciplinary procedure was a single act, or whether all of these acts could be classified as continuing acts of discrimination.
Mr Hale was a Consultant for Brighton & Sussex University Hospitals NHS Trust (‘Trust’). His job title was Clinical Director; he was the line manager for many junior doctors and other clinical staff. Four members of his staff lodged a collective grievance against Mr Hale, alleging racially offensive remarks, bullying and harassment. From 10 February 2014, Mr Hale was signed off sick and was later diagnosed with depression. On 13 June 2014, Mr Hale lodged a formal grievance alleging racial harassment against three of the four junior doctors who lodged the collective grievance against him. The Trust concluded that Mr Hale had a case to answer (on the grievance made against him by the four junior doctors), whereas the three junior doctors did not have a case to answer (on Mr Hale’s grievance). The Trust started disciplinary proceedings against Mr Hale which resulted in his dismissal.
Mr Hale lodged a claim against the Trust, claiming that the Trust’s lack of investigation into his grievance was on the grounds of race. The Employment Tribunal (‘ET’) took the approach that each step of the disciplinary procedure was a separate act (i.e. (1) starting the disciplinary procedure; (2) inviting him to a disciplinary hearing; and (3) the decision to dismiss). In taking this approach, the ET found that the first act was seven months out of time.
When Mr Hale appealed his case to the Employment Appeal Tribunal (‘EAT’), the EAT had a different analysis to this point.
The EAT disagreed with the ET and held that the decision of the Trust to instigate disciplinary proceedings “created a state of affairs” that would continue until the disciplinary process ended. Therefore the EAT found these acts to be continuing acts (not singular acts as the ET concluded). The EAT commented that each of the steps taken in accordance with the procedures cannot be “isolated or specific acts”.
By Zahid Reza
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Footballer David Cox (who plays for Scottish League Two side Cowdenbeath) has suffered from depression since the age of 15. Since David made the decision to speak out about his mental health issues (including that he has attempted suicide and self-harmed), he has received abuse from by players and fans.
Some of the abuse he was subjected to included fans saying “go and hang yourself and do it right this time”; and players talking about “me slitting my wrists and stuff”.
David has implied that some fans come in with the mentality that as they have paid their money, they can abuse who they want, and then go home and forget about what they have said, not thinking about how their actions have affected the individual(s) subject to their abuse (particularly if the individual suffers from mental health issues). For David, he described the effect as “it bothers me for the rest of the weekend. It gets me in a bad place again”.
David said that players often gave him abuse, just to gain a competitive advantage, then later apologised for their actions.
David’s story arguably highlights the lack of awareness in society about the seriousness mental health-related harassment, as otherwise the fans and players would not abuse and mock David for his mental health issues. There has been much focus on dealing with mental health issues in the workplace, however maybe David’s story indicates that there should still be a wider focus on educating society in general on the seriousness of mental health issues.
The law recognises that a mental impairment can meet the definition of disability (and therefore attract the protection of discrimination law). However, from a legal perspective it is notoriously difficult for depression to be recognised as a disability, and is almost impossible without medical evidence. In light of David’s story, maybe the law should have a different test for a mental disability (rather than at the moment, where one legal test captures both mental and physical disabilities) that captures most forms of mental illness, so to give more individuals suffering from mental illness the protection of discrimination law.
By Zahid Reza
Image used under CC courtesy of Martha_ChapRead More