Employees on call – what amounts to ‘working time’ under the Working Time Regulations?
Friday 28th June 2024
The Employment Tribunal recently published its’ decision in the case of Thomas & others v the Chief Constable of Humberside, in which it was asked to decide how much of an employee’s time ‘on call’ should count towards that employee’s working time, defined under the Working Time Regulations 1998 (WTR).
Facts
The Claimants were employed to work in the Humberside Forces Covert Authorities Bureau (CAB).
Due to the nature of their work, the Claimants were retained on an ‘on call’ basis for 12-hour shifts during the week, or 24-hour shifts at weekends and bank holiday, known as standby duty. They were paid an ‘on call’ allowance.
The CAB staff received an average of 2.25 calls when on standby duty, worked for an average 5.8 hours per shift, had a 50% chance of being called out when on standby duty and a 69% chance of receiving multiple call outs on the same shift.
As part of a Standby Agreement, the CAB staff were:
- Not allowed to consume alcohol;
- To remain at home if they did not have a serviceable pager or phone; and
- To remain within the Humberside Police Force area when not at home,
amongst a number of other requirements.
Due to the level of restrictions imposed and the expectation for an immediate response, the Claimants were unable to switch off and relax or fully engage in other activities. The Claimants therefore brought claims against their employer under Regulation 10 of the WTR for lack of daily rest.
Decision
The Tribunal held that the entire standby duty falls within the definition of working time under the WTR.
As a starting point, only the following would normally be considered as working time during an ‘on call’ period:
- Time spent carrying out duties, i.e. actually attending to call outs;
- Time spent at the workplace, including time spent sleeping or resting; and
- Time spent at another place determined by the employer.
However, in this case, the Tribunal found that the number and nature of the police force’s requirements significantly affected the Claimant’s ability to devote their ‘on-call’ time to their own interests.
The Claimants were limited in what could be done in the remainder of their free time as they were required to respond to the call and to commence work immediately, work could come at any time and the frequency and duration of any work was unpredictable, they were effectively restricted to their homes or a very small surrounding area, and unable to switch off mentally.
Comment
This decision serves as a reminder that employers must take extra care when dictating their ‘on call’ requirements. If the requirements are too onerous or restrictive, the entire on call period may be working time. This will have implications on the employer’s statutory duty for sufficient rest time.
For any further guidance or assistance, please get in touch with a member of the Employment Team who will be happy to help.
