Dear Auntie,

I am the HR Manager of a company which owns a development of privately-owned homes and communal areas for people over 60 years of age.  One of our employees, Karen, works as a Resident Manager at the premises and works four days per week of 24 hours on site cover.  She has rent‑free accommodation on site which serves as her office.  An important part of her job is to respond to emergencies and each resident has an emergency pull cord connected to the mobile phone which Karen must always carry with her while on duty.  Whilst Karen is on call she must remain on our site or within three minutes from it.  Whilst she cannot leave the site, she is able to have visitors in her flat and essentially do as she pleases, i.e. listen to music, eat and sleep.  Whilst Karen is on call, she must answer emergency and non-emergency calls.  Usually she deals with around three emergency calls each month and ten non‑emergency calls. 

Karen believes that she is working throughout the entire period when she is on call (even when she is asleep) and is suggesting that she is not benefiting from the daily rest periods and rest breaks to which she is entitled under the Working Time Regulations 1998.  Please could you clarify the situation for me.

Yours sincerely

Jill Jones

 

Dear Jill,

I am not surprised that you are seeking clarification, since this is a complex area which is largely governed by European law.  As you may know, the UK Working Time Regulations 1998 are derived from European health and safety legislation. There have been several cases regarding the issue of “on call” time, often dealing with hospital doctors.

As a result of a recent case, based on several judgements from the European Court of Justice, a worker who is provided with tied accommodation at her workplace and who is required to be on site to answer calls throughout a period of 24 hours (but otherwise can sleep during the night or take recreation in her home) like Karen, is “working” for the whole 24 hours for the purposes of the Working Time Regulations. 

The fact that she might only rarely be called during this time is not important.  Also, it is not relevant that the accommodation provided by her employer constitutes Karen’s home.  The verdict from the European cases is that workers who are on call, at a place where they are required by their employer to remain, are working even when they are sleeping or resting.  From what you have said, all of the period when Karen is on call counts as working time and she is therefore entitled to both daily rest periods (i.e. a rest period of not less than 11 consecutive hours in each 24‑hour period) and rest breaks (i.e. an uninterrupted period of not less than 20 minutes where her daily working time is more than six hours).

There was a similar case recently, not in relation to the Working Time Regulations, but concerning a contractual entitlement to be paid for work done even where the employee was asleep.  The case involved a hotel manager who was required, for a nine‑month period, to sleep at the hotel overnight to deal with any emergencies which arose.  In the nine months, he had only been required to deal with one emergency and as a result, the hotel tried to argue that this on call time should not be regarded as working time for the purposes of being paid under his contract of employment.  The Employment Appeal Tribunal disagreed and held that the time during which the manager was contractually obliged to be present at the hotel was working time and he was therefore entitled to be paid for it even though he was asleep.

Going back to Karen, since she is legally regarded as working throughout her on call time, you should check whether or not she is receiving in excess of the National Minimum Wage.  As I’m sure you know, this is currently £5.05 per hour and will be increasing to £5.35 per hour from 1 October 2006.

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