On Call

Phill S
Member - 81 posts

As I am also interested in the answer to this, I am making this comment in order to get an alert.

Alan Blacker
Member - 31 posts

The basic answer is 'yes' as response workers are technically under engagement during periods of 'on call'. On Call time is referred to under the head of 'unmeasurd work' and is calculable in the WTR's an NMW regulations. Alcohol policies are extensions of the two principle duties of obedience and performance, they can be 'enforced' by reasole means, for instance hand held alcohol in breath testing equipment; subject to calibration, maintenance and fairness these prove useful deterrents to misuse of alcohol in the transport industry fo instance. The testing should however be subject to a grievance and appeals procedure ad independent scrutiny. Your friendly lawyer.

Michael Fursey
Member - 5 posts

As an FM Manager, I am supposed to be available on the end of a mobile phone in order to respond to an incident on site at any time, day or night, 365 days a year. Although this is part of the "Job Dimensions" which form part of my T's and C's, how does this stack up with WTR, etc? The company will only pay me (and therefore count as 'working time') those hours where I'm actually called out. We don't have any form of "call out" rota - I'm it! I've never really thought about it and just accepted it as a necessary evil and part of the job but this has prompted me to think. I wonder how many of my collegues elsewhere are in a similar position...

Andrew Walsh
Member - 6 posts

I operate on a similar basis to Michael, although we have a rota system we would still receive calls if an incident involved one of the buildings within the portfolio, which we managed. We’ve recently flagged this as an issue, mainly after finding out that IT departments receive an “on call” allowance (regardless of whether they receive a call or not during rotation) but also due to anomalies in working practices.
If you are on call are you required to be within a certain radius of the premises to respond to any calls? Even on a week-to-week rotation this would mean your movements would be restricted over weekends and theoretically you couldn’t consume alcohol during the rotation period in case you receive a call. This is further exasperated in incidences when the FM is the only point of contact and there is no rotation system…
Any assistance would be welcome in formulating a fair policy

Brian Soulby
Member - 1 post

interesting discussion and something we have discussed recently for staff, interested in any comments

Alan Blacker
Member - 31 posts

The basic position isbased on the pretext of not being free to pursue one's own business during the on call period. There are a number of EAT cases which have been successful in claiming that on call time is working time for the purposes of both the NMW ad WTR's

Graham Jones
Member - 16 posts

Alan I would be interested to know of the EAT cases you mention as I have an ongoing concern regarding on-call many thanks.

Alan Blacker
Member - 31 posts

I am on holiday this week but will post details of the regulation and the cases when I return. The position is secure I can confirm however. One case involved a nursing home and the oher involved a night watchman, both were found in favour of the rule even through the nurses could sleep and the watchman could not; the rule was upheld. Esentialy then the position is that on call time counts towards workin time. Your friendly lawyer. p.s. I charge by the chocolate cake.

Alan Blacker
Member - 31 posts

I apologise for the typo's my keyboard is blue toof!

Graham Jones
Member - 16 posts

Thanks Alan for that, I hope your toof gets better soon! Its proberbly all the chocolate cake you are eating however,
Can I confirm that the cases you mention are persons at work in their place of work and not at home on call as i believe this maks all the difference. Hope to hear from you soon and await the cases you mention, many thanks.

Darren Edwards
Member - 1 post

So you are saying, if I am on call and work a 40 hour week I am breaking the WTR,
if I am called out in the early hours, do I still trn up fo work at 08.00

Matt Cropley
Member - 8 posts

Hi Graham

I think the cases Alan is referring to are Scottbridge Construction Ltd v Wright and MacCartney v Oversley House Management (or possibly BNA v Inland Revenue).

Mrs MacCartney was a residential manager of sheltered accommodation and was required to provide 24-hour on-site cover for 4 days per week. She lived in a flat on-site (her office was in the flat) that was provided by her employers. It was held that she was entitled to be paid for all the hours she worked.

In 'Scottbridge' the claimant was a night watchman who was required to be on the premises for his whole shift. Even though he wasn't required to do very much, and could sleep on the premises, he was 'on call' for his whole shift, and therefore entitled to the NMW for those hours.

I would also refer you to the ECJ's decision in the SIMAP case, where the time spent on call at a hospital by doctors was working time (even when inactive) because (1) they were required to be present at the place determined by their employer and (2) they had to be available to the employer to provide services in emergencies.

Therefore the key difference is that employees who are on call at home (e.g. doctors who are contactable but not required to be on premises) are not 'working' during periods of inactivity, whereas employees on call at their place of work are 'working'. However, a worker whose home is also their workplace (as in the MacCartney case) will more than likely be held to be 'working' for the hours they're on call.

Matt

Graham Jones
Member - 16 posts

As I believe it Darren the 40 hrs a week is averaged out over a 17 week period or a period determined by collective agreement and you have to take a continuous 11 hr break in any 24 hr period so depending on when you are called out depends on what time you start your work. i.e. monday working 0800-1700 day job then on call from home if called out before 0400 and return at 0600 then you are entitled to take your 11 hr continuous break and start work again at 1700!

Thanks Matt I believe you have answered my question in that you have to be at your place of work for 'on call' to be calculated. Or your place of work is your home.

For those of us in employment where we are contracted to take part in an 'on-call' rota It is a pity that the individual 'on-call' has their life disrupted to such an extent that they are unable to have a drink and have to remain in close proximety to their workplace causing disruption to their family life. I have to be 'on-call' 7 days a week in every 5 weeks after my normal work finishes Monday to Friday at 1630 daily and the full weekend for a pittance. Unfortunatly it was a condition imposed on the workforce or you left work.

John Maltby
Member - 17 posts

Scenario: Electrician working for large water company returns home at end of working day and assumes 'on call' status. At 1800 hrs receives 'call out' instructions to attend faulty pump at unmanned pumping station over 1 hours drive away.

Engineer attends site in company vehicle (non hgv) and resolves problem with other agencies at 0350 hrs and returns home at 0500 hrs. On closing task with duty desk advised they were allowed 6 hrs break before required for normal work at 1100 hrs that day.

Questions: 1: Whilst at home 'on call' but 'inactive', at what point of the call out does it become 'active' under WTR? I say from the moment of the call as an immediate response is required is this correct.

2: If the answer to 1 above is at the point of the telephone call, presumably the electrician becomes 'inactive' on closing the task with the duty desk having returned to residence unless, they are subsequently retasked when they will remain 'active'

3: If the WTR stipulates a min of 11 uninterupted hrs rest between each working day, where would the 6 hrs allowed given above be justified?

John.

Alan Blacker
Member - 31 posts

I am afraid the ratio desn't quite folow te path described. The basic position is that any period of being on call in calculated working time the mere fact that bing a resident or otherwise merely goes to the application of the basic rule. The facts of eac case determine the application not the principle. Accordingly a person who is inactive but who is live to the posibilit of receivng calls is not free from the burden of work and is therefore still working. It is not correct to assume that being absent from a place of work quashes a claim for being 'in work'. As to th emploee breakingthe law, the employer alone is liable not the employee. The last post above looks rather like a law degree question! The fact that the person is liable to work is just as relevant as actualy working. Accordingly the working time does not stop until the person is free from the liability to be called out. I hope this helps.

Alan Blacker
Member - 31 posts

For the sake of clarity, the fact that you are present or absent at a designated place of work DOES NOT Change The basic rule, it merely provides evidence for the applicant in a tribunal action.

John Maltby
Member - 17 posts

Alan.

Many thanks for your responses to my entry, apologies if it appeared to be a legal test paper question however, it was an actual event recently which myself and an associate were discussing and were seeking clarification on the points identified.

John

Ian Walford
Member - 33 posts

Having read the WTR there's this exemption for unmeasured work-
managing executives or other persons with autonomous decision-taking powers
No mention what these powers are, from chicken or beef pot noodle upwards, but I'm guessing as an FM i'd be exempt.

Mal Muinzer
Member - 3 posts

How does the EWTD impact upon non-statutory workers - nominally employed 9-5 - but who are expected to carry mobiles and respond to social care situations each evening and every weekend? When would they ever be "off duty"?

Graham Jones
Member - 16 posts

Hi Mal. Are the non - stat- Workers on a rota for evenings and weekends? If yes then they would be classed as 'on call' when called out and 'off call' on their return to home. They are then entitled to an 11 hr break before returning to their desks. The difficulty arrises at weekends as the individual if not called out or disturbed from 0900 to 2000 has had an 11 break and if called out after 2000 they are expected to be at their desk at 0900 the next day. As a ps can you explain what a non-statutory worker is? Many thanks

Mal Muinzer
Member - 3 posts

Thanks for your thoughts on this Graham. By non-statutory I mean social care workers who are not legally obligated to respond to statutory situations (ie children at risk, someone with a mental illness who is a threat to themselves or others) in a way that Social Workers would be required - and would want to - irrespective of how long the situation took to resolve. The workers I am thinking about are not qualified SWs but work for an agency for which they seem to be effectively on-duty 24/7 and expected to respond to mobile phone contacts. From what I hear there isn't much in the formal way of a rota - simply management expectation and custom and practice. It feels like an unfair situation and I've advised that the workers become unionised as a way of clarifying and insisting on their rights. Having said that, they're "nice" folk and don't want any trouble. Suggestions?

Alan Blacker
Member - 31 posts

Hi Mal, Essentially 'non-stat' workers could quite effectively optimise their individual rights by instructing a Law Centre to negotiate a non threatening agreement with the service, they could then fomalise their rights and have the added protection of a contract. If they do not wish to unionise this would provide the right level of protection without causing 'trouble' Additionally it would be provided under a LSC employment law Legal Assistance contract so would be funded by legal aid. (eligibility assumed). Law Centre solicitors are trained to the highest standards and provide an excellent foundation for negotiations without the perception of aggression. Your friendly lawyer.

Graham Jones
Member - 16 posts

Hi Mal I agree with Alans way of gaining these 'non-stat' workers rights. I can also in these difficult employment times see that these individuals may be reticent to go along this path. However if they are employed by an agency isnt it the agencies duty to ensure they are found work that ensures their individual rights regarding working practices?
In these times of litergation employers have to be more careful regarding an employees way of working as should an accident occur perhaps because the individual was over tired who would take the blame in any H&S investigation?

Mal Muinzer
Member - 3 posts

Many thanks Alan & Graham
Yes, I feel that it is the employer's duty to ensure that practices comply with the worker's rights. It's simply one of those quietly evolved but pathological situations in which one party (the senior management) seem either not to know their responsibilities or are enjoying flexibility (ie chancing their arm) because the other party (the sub-managers) have not historically insisted upon their rights. Litigation would not happen in this situation due to the unhealthy cosiness of both parties. I will pass on your greatly appreciated advice to both parties and hope for an outcome reflecting the rights and responsibilities of both parties.

I will pass on the advice to both

Alan Greaves
Member - 1 post

2 scenarios if I may, (both real).

1. Joiner and gas engineer work 8 am until 4.00pm are then on call with mobile phone through until 9am following day, expected to respond to all repair requests made in this time

2. Admin staff (Same timescales) at home with mobile taking calls as and when from customers and passing repair requests to operatives mentioned above.

Then covering 24 hours on weekends in similar fashon. The work is tata'd to 5 admin and 5 operatives.

All staff return to work the following morning after their on call shift

Is this ok? If not as I seriously suspect. What are the rules please


most grateful to you


Alan Greaves Nottingham

Graham Jones
Member - 16 posts

Hi Alan. Same rules apply to both senarios an employee must have an 11hr uninterupted break from work in any 24 hr period.
Uninterupted is the word to focus on.
If an employee is not interupted then they shall return to work the next day at their normal time.
Google working time directive to find the legislation and the relevant section to refer to. Hope this helps.
Graham

Alan Blacker
Member - 31 posts

I am afraid I disagree, being on call is woked time for the purposes of the legislation, the mere fact that a call is not received is not relevant. The law on this is straightforward, on call means at work.

Graham Jones
Member - 16 posts

Hi Alan.
As I believe it on call at home waiting for a call out is different from on call at your workplace as you are not at work when at home. Working time starts when you are called out and finishes when you return home. The uninterupted 11 hr break then starts again.
Graham

Kevin Brown
Member - 116 posts

I believe there is no material difference in waiting for a call out at home or at the workplace. Both place severe restrictions on social and family life and adversely affect the work/life balance to the extent that the employee is in effect still at work. You might care to examine recent cases involving 'on call' care attendants and LA residential homes. From memory I believe these not only brought into question the issues of WHD and breaks from duty, but aso recalculation of pay based on minimum wage legislation and the hours 'inactive' but on call.

Alan Blacker
Member - 31 posts

The law is as stated above folks, being on call is accumulated time towards both NMW and WTD working time. Kind regards, Your friendly lawyer.

Graham Jones
Member - 16 posts

Kevin I agree regarding the work/life balance issue on call is restrictive but dont the two examples you quote involve individuals who are on call in their workplace??

Alan can you be more descriptive regarding accumulated time I actually employ and work an on call system and am interested in the legal issues of WTD and 'on-call' in particular.

Many thanks Graham

Alan Blacker
Member - 31 posts

Hi Graham, I outline the rules towards the top of this thread and discuss them in various forms throughout, hope this helps. Kind regards. Alan.

Graham Jones
Member - 16 posts

Thanks Alan Im getting confused now I have read your various in depth articles regarding this issue but are not the legal prescedents all for persons 'on-call' at their place of work and not at home waiting for a callout?
Many thanks Graham.

Ian Aspinall
Member - 4 posts

All,
I am reading this thread with great interest, I was wondering if an operative was returning home at 3:00 AM after an emergency call, he is entitled to stay at home until 2:00 PM (11 hrs).
He is normally contracted to finish work at 5:00, which gives him 3hrs pay. Is he entitled to pay from his normal start at 8:00AM or does he lose out?
At the end of the day he is only going to work for remuneration, but will lose out if he stays at home. Where is the WTD stance on this?

James Fairchild
Member - 357 posts

Ian,


I don't believe there is any legislation as such concerning whether one looses their wages in this situation or not.


Instead, one would look at the contract of employment, and custom and practice in the organisation.


Certainly it would seem unfair for such a person to loose their following days' pay..... and the employer (and employee) would be in trouble if the employee came in at the normal time, but I'm struggling to think of something that would clarify the situation from a legal point of view.

Graham Jones
Member - 16 posts

Hi Ian In my workplace if an individual is on contracted hrs and goes on call the individual is paid for the time he is at rest taking the 11 hr break where an individual is on 0 hr contract (casual employment ) but agrees to go on call the individual does not get paid for the 11 hr rest part of his working day. The individual is advised of this by management prior to commiting to an on call period and it is then the individuals decision to go on call or not.
All contracted hr personnel have as part of their contract to partake in an on call system 0 hr personnel do not have this in their statement of employment.
Hope this helps?

Alan Blacker
Member - 31 posts

Dear Friends, In summation of my earier advice, for the purposes of the NMW and WTR's 'on-call' is the same as 'at work' and this is the basis for all calculations concerning accrued working time. Your friendly lawyer.

frank palma
Member - 2 posts

Workers are entitled to 11 hours uninterupted break between the end of one working day to the start of another working day, but for those on call for example if the end of one working day ends at 5.00pm then the earilest that a worker can start is 4.00 am the following day under the WTD, but if lets say 3 hours are worked on call between 7.00pm to 10pm then the earilest time that the worker can start is 11 hours after the finishing time after 10 pm thus making it 9pm so if your normal start time is 8am then you owe your employer 1 hour unless you have some other arrangement WTD Regulation 21 (special cases) covers workers incertain occupations, workers on-call from home are not considered to be on call until given instructions from the employer. check out ECJ judgement on SIMAP, Dellas. Bottom line is that if you are monthly paid (Salary) NMW does not apply thus your hourly rate would apply for on call calulations of payments unless you have a works agreement.

Robert Moloney
Member - 4 posts

Hi, interesting comments.
As a facility manager I am a main key holder. the out of hours set up is a security company as first responce then myself then another senior manager.
The expectation is that I am always contactable there for always on call.
Some issue require my return to the work place which I would then claim pay for. however 80% of the time wether at home or out shoping I can deal with the issue over the phone. my question is does that 1 minute or ten minute conversation count as being called out and would i legally be intittled to but in for a callout pay claim minimum 2hours pay as per company policy?

frank palma
Member - 2 posts

Hi Robert
What you do not state is whether you are paid an amount ( on-call allowance)to be available outside of your normal working hours, Once you receive a call on which you need to action whether it takes 10 minutes of 1 hour then it is for your contract ofemployment to determine for and by how much you should be paid, Industry standard is 2 hours pay, but rememberyour employerneeds to comply with WTD so if you receive the call at 11pm and it takes 1 hour to sort out, then earliest that you could start work again the next day is 11am, the11 hour break is a statutory entitlement, there is no opt-out of this unless you are covered by Regulation 21 WTD 1998, thus in answer to your question re: 2 hours pay for call out the answer is yes, but read the policy to see if there is a minimum of time that is required to receive the 2 hours it pay, it is betterto receive an allowance as it would be pensionable and would not fall foul of the 11 hour rest period, as in your case as not being able to start work until 11pm means that you would have to make up the hours that fall short of the start time to when you start work

Mike Kane
Member - 30 posts

If I can be of assistance, I was an operational fire officer for many years. As a "supervisory" officer we were rostered to provide cover and immediate response when required both from our workplace during "office hours" (ie. the fire station) and "out of hours" from our home or any other place we might be in (within certain geographical constraints for operational reasons).

ALL of the hours we were rostered to provide cover were classed as "working" hours and counted towards our weekly hours, whether we were called out or not.

Senior fire officers were exempted from the WTD and provided an average of 78 hours duty per week over a 5 week rota. The point is that we were paid (salaried) reflecting the hours worked whether in the office or at home.

A further point is that if we were required to take command of an operational incident "overnight" we were not expected to be at our desks the following moring, although I can't now remember the exact ratio of "hours worked / time recuperating".

All of this was made easier by the fact that within the County fire brigade there were a number of on call officers on duty at any one time and therefore there was flexibility to take time off after working through the night as there were still sufficient others on duty the next day, which cannot be the case if a single individual is "it", as appears to be the experience of many on this post.

I think that employers are probably not working within the regulations if they expect individuals to be on call 24/7 and do not allow recuperation time should a call out be experienced...................

Ah well, Happy Christmas, got to get ready for the grandchildren's arrival.........

Mike Kane
fireuk@msn.com

Robert Moloney
Member - 4 posts

Frank, Mike thanks for your comments Happy new year to you both indeed to you all. Robert