The on-call conundrum continues…

The Employment Appeal Tribunal (EAT) has recently revisited, in Truslove & Wood -v- Scottish Ambulance Service the vexed question of time spent by workers on call when not actually working – is it working time, or rest? One critical factor in answering the question is where the worker is expected to be whilst they are on call. 

Background facts

Both Mr Truslove and Ms Wood were ambulance paramedics normally based at an ambulance station in Elgin. Occasionally they provided nightly on-call cover at two other sites, and when they did that they had to stay at accommodation (although of their choice) within a 3 mile radius of the particular station. In addition, they had to be ready and mobilised within 3 minutes. The question for the Employment Tribunal (ET) and then the EAT was whether or not this time on call was working time or not.

Regulation 2 of the Working Time Regulations (WTR) 1998, which is based upon the European Working Time Directive, defines working time as ‘any period during which [a worker] is working, at his employer’s disposal and carrying out his activities or duties‘. Under the WTR, time must be either working time or rest.  There is no other category of time, and the two are mutually exclusive.

In Truslove, the ET considered two of the leadings cases from the European Court of Justice (CJEU), SIMAP -v- Valencia and Landeshauptstadt Kiel -v- Jaeger. The fact that the on-call issues raises a particular problem for healthcare providers is reinforced by the fact that the leading cases heard by the CJEU concerned healthcare workers.

In SIMAP, doctors had to stay at their particular medical facilities whilst on call. The CJEU decided that time on call was working time as the doctors had to remain at the facilities, but it would not be if they were not required to be at their workplace.  In Landeshauptstadt Kiel, the doctors were also provided with a room and a bed and could sleep when not called out. Since the doctors had to be at the medical facility whilst on call, the CJEU again decided that time on call was working time.

ET decision

By analogy with these cases, the ET decided that for the Scottish ambulance paramedics time on call was not working time because they were not confined to one specific location and could arrange their own accommodation.

EAT decision

Overturning that decision, the EAT found that the ET had failed to consider the purpose of the WTR, which is to protect the health and safety of the worker.  Whether time is rest time (and so by definition not working time) depends on the quality of rest a worker can get, or as the EAT put it, whether the worker can ‘unshackle himself from the rigours of the employer’s control’.

The EAT held that the fact that a worker may be confined to one specific location is beside the point. What is relevant is the very fact that the employer has specified it, and the worker’s lack of freedom to be anywhere else. Given the circumstances facing the ambulance paramedics whilst they were on call, it could not be said that their time was their own. Accordingly, for them on call time was working time.

Conclusion

The WTR has caused particular difficulties for healthcare services, particularly with emergency or 24 hour services because time can only be working time and rest time, with no intermediate category. This problem has been recognised for some time with, so far, no progress being made. As far back as 2008, the European Council proposed a third category, the ‘inactive’ part of on call time, which would not necessarily be treated as working time unless it was agreed otherwise. These proposals were taken no further. With no immediate solution, employers will have to be vigilant to ensure that they are fully aware of the significance, in terms of the WTR, of any arrangements they make for those on call.

Click one of our articles to continue reading about duty to make reasonable adjustments, dependents leave and disappearing employees and the latest TUPE update. Binding communications about pay, when employees strike, the future of Employment Tribunal fees, the scope of reasonable adjustments and finally In a nutshell.

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