Is on-call time ‘working time’?

The case was limited to a consideration of working time under the Working Time Directive, which provides rights to holiday entitlement and rest breaks, and limits maximum working hours. The Directive has been implemented in England and Wales through the Working Time Regulations 1998.

The claimant was a firefighter and while on-call had to be contactable and within 8 minutes’ travelling time of the fire station.

The ECJ found that as the worker was restricted in where he could be, which could have an adverse effect on the quality of time spent on-call, and he had to be available to work at short notice, the entire time spent on-call was working time and had to be taken into account for the purposes of determining compliance with his rights under the Working Time Directive.

Important considerations

On-call arrangements are used widely by care providers, particularly for managers who may need to respond to emergency situations. You should check your employment contracts and working practices to determine whether your on-call arrangement is working time under the Working Time Regulations. One of the key issues to consider will be whether you can remove any restrictions placed on workers while on-call.

This case did not consider whether on-call time fell under the National Minimum Wage Regulations. However, it is possible that on-call time could also be working time for these purposes, but it will be fact-sensitive. Restrictions on what the worker can do or where they can be are likely to make it working time.

With the on-going sleep-in pay crisis, a number of providers are considering whether sleep-in shifts can be replaced by on-call arrangements to mitigate the impact of complying with the National Minimum/Living Wage. This may be possible in some cases, but there are a number of thorny issues to consider in addition to the minimum wage rules, including compliance with commissioning and regulatory obligations.