If you have staff who need to be available to deal with work as it arises (perhaps on an emergency basis), you may have grappled with the question of whether you need to pay them for being on-call.
Examples include key-holders, medical and caring staff, the emergency services, farm managers and certain employees in the catering and service industries. Sometimes, accommodation is provided for the specific purpose of being on call.
Where time on call has to be spent at the workplace, this counts as working time, whether or not the employee is actually working.
Hours spent on call away from the workplace, where the employee is free to pursue leisure activities, only count as working time for time actually spent working. But there are grey areas, for example when you require your staff to be contactable and to respond promptly if needed.
This was highlighted recently in a recent employment tribunal case brought by ambulance paramedics (Truslove and another v Scottish Ambulance Service). They were obliged to stay within a three mile radius of the ambulance station, ensuring that they could reach the station within three minutes if needed. Subject to that, they could do their own thing. No-one lived in that radius.
They were required to be on duty in case their services were needed. They weren’t given rest periods if there was nothing to do and they asked an employment tribunal whether being on call was the same as being at work. Was it working time? Rest time? Their own time?
Some definitions and principles:
- Time spent working, at your employer’s disposal and carrying out duties.
- Where a worker is obliged to stay in the workplace and be available for work if needed, this is working time and not a rest period, even if allowed to sleep – the EU case of SIMAP v Valencia.
- This is the case even if it’s not the workplace, but a place nominated by the employer – EU case of Jaeger and MacCartney.
- If they are merely obliged to be in a general radius from the workplace so as to respond promptly, this could be a rest period – Northern Irish Court of Appeal case of Blakley v South Eastern Health and Social Services Trust.
The Employment Appeals Tribunal found that the paramedics were working. Here are some pointers for deciding the likely outcome:
A requirement to be present at a place or on call but very near a place determined by the employer will be working time.
Lack of freedom to do their own thing is relevant. But merely requiring an employee not to go abroad in on-call time would not make it working time
A requirement to meet a target response time of three minutes is so short that it points towards working time.
Where the on call location is necessarily away from home, or necessarily at home, that time is more under the control of his employer and therefore working time.
If still in doubt look at the purpose of the Directive, which is to improve living conditions and health and safety.
The take-away from this case is that workers who are subject to significant geographical constraints in on-call time are likely to be considered to be working during it.Read More
A report on home-working by the Trades Unions Congress tells us that the number of people who normally work from home has increased by 62,000 to 4,000,000 over the past year, of whom 650,000 are disabled.
The TUC makes the point that offering home-working can attract employees who would otherwise be discouraged by high commuting costs and that almost all studies show that it is more productive.
However, despite the many advantages of home-working many employers don’t trust their employees to work from home. We think that the rise in super-fast broadband is likely to boost this trend still further.Read More
From April 2014, Employers can no longer reclaim SSP from HMRC in cases of employee sickness.
SSP is £87.55 a week for up to 28 weeks. Until now, employers would foot the entire monthly bill for SSP payments up to 13% of its national insurance contributions that month but the state would reimburse the rest.
This gave employers having over a certain level of sickness no incentive to bring sickness levels down.
Now, employers will foot the whole bill.Read More