When being asleep on the job counts as working time #hr #wtr #cipd

CIPD: Paramedics ‘shackled’ to their place of work while on call were entitled to compensatory time off. It is not uncommon for employers to have staff ‘on call’ – in other words, available at all times to deal with any emergencies. Over the years case law has developed to give protection to employees who spend regular amounts of time on call, especially with regard to ensuring they receive adequate rest periods in compensation.

Recently, courts have focused on the issue of whether employees who are on call and required to be present at a specific location, but who do not have any tasks to perform and often spend the time asleep, are working within the meaning of the Working Time Regulations 1998.

Facts

A recent case, Truslove v Scottish Ambulance Service, concerned two ambulance paramedics. Sometimes they were required to provide nightly relief cover at different ambulance stations, away from their home base. During this time, the paramedics were required to stay at accommodation of their choice within a three-mile radius of the relevant station as they had a target response time to call-outs of three minutes. The location of the stations meant they couldn’t stay at home. The paramedics claimed this on-call time was working time within the meaning of the regulations and that they were entitled to a rest period in compensation.

Tribunal

The employment judge considered the difference between being on call but free to be in any location, and being on call but confined to a specific location. The judge held that because the claimants in this case were not confined to one location, they were at rest when on call and the periods spent on call did not, therefore, constitute working time for the purposes of the regulations. The claimants appealed.

 EAT

The Employment Appeal Tribunal looked carefully at the case law in this area and held that the tribunal had been wrong to find that the paramedics were at rest while on call.

The EAT noted that case law provides that the focus should be on whether the place where the employee happened to be when on call was where the employer required that employee to be. If employees are required by the employer to be away from home, for example, or even to remain at home or within a very close distance from the workplace, the time spent during this period is not wholly their own – it is under the control of the employer. The relaxation available during genuine rest periods is, therefore, unavailable when employees remain ‘shackled’ to a particular location and under an obligation to provide a response to their employer’s requests.

The EAT held that, in this instance, the fact that the paramedics lacked the freedom to be anywhere other than within a three mile radius of the station was the determining factor in whether their on-call time was working time. It allowed the appeal.

Comment

This case is the most recent in a line of cases focusing on the status of on call workers, with the courts and tribunals widening the scope of ‘working time’ further on each occasion. The fact that the EAT referred to the employees as being ‘shackled’ (even if they were, for example, in the cinema) is an indication of the approach taken in these cases.

Employers need to consider carefully the restrictions they place on employees while they are on call, even if they are not required to remain at one specific location. It is clear that the courts will take any infringement on an employee’s rest period seriously and may require further remuneration and/or compensatory rest periods to be provided in relation to any on-call periods.

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