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21 August 2014

‘On-call’ time held to be working time

In a recent decision of the Scottish Employment Appeal Tribunal, ambulance paramedics who were "on-call" were held to be working for the purposes of the Working Time Regulations 1998 (WTR).

Under the WTR, working time is defined as any period during which a worker is working, carrying out his duties and is at the employer’s disposal.

In this case, the ambulance paramedics (who provided relief cover at different ambulance stations) were required under a term of their contract to stay within a three-mile radius of the relevant ambulance station and to respond to calls within a target time of three minutes.  In order to fulfil this requirement, the paramedics could not stay at home but had to stay overnight at accommodation of their choice.

Previous European (ECJ) case law had established that on-call doctors, who were permitted to sleep at the hospital when not carrying out their duties, were working for the purposes of the Working Time Directive. However, the employment tribunal in this case decided that the time spent by the paramedics on-call was not working time, as they were not confined to a specific location during the period they were on-call.

Decision

The Scottish EAT has now upheld the paramedics’ appeal. The EAT did not consider that it was necessary for workers to be confined to one specific location for the time to be considered working time. The fact that the claimants had to remain within a specific radius of an area determined by their employer was sufficient, in the EAT’s view, to mean that the time on-call was working time.

According to Mr Justice Langstaff’s judgment: “the relaxation which is available in the company of family and friends (or at least may be) and the pursuit of personal hobbies and the like, all characterised by the exercise of free choice, free from the direction of the employer, is unavailable where an employee remains shackled by his employer to a particular location and is subject whilst there to providing an immediate response to his employer’s bidding.”

Comment

This case widens to some extent the classification of working time for those who are ‘on-call’ and subject to some control by their employer.  What is not clear from this decision, however, is whether and to what extent it would include those who are required to spend time on-call, but who are not subject to such a limited radius or target response time.

Making express provision for the classification of on-call time was one of the proposed amendments to the European Working Time Directive back in 2008.  However, member states failed to reach agreement on the proposals at that time and progress on amending the Directive has since stalled. It is therefore unlikely that this issue will be fully resolved in the foreseeable future.

A copy of the EAT judgment is available here.