The On-call Working Time Directive

What is On-Call working?

On-call working is often associated with the emergency services but many other businesses use on-call staff. They are essentially a standby employee. And it is when, outside of normal working hours, they’re ready to carry out work when you tell them.

Such an approach is in use when a business has an unexpected or emergency demand outside of traditional working hours. There will often be on-call shifts where the worker is never required to do anything, or somewhere they are actually working for the whole time.

What are the On-Call working time laws?

Under the working time directive for on-call hours, “working time”’ is where someone works at your disposal and carries out their activity or duties. There are generally two different types of on-call working.

1. The first is where the worker has to be at their normal workplace for the length of the on-call shift, waiting to carry out their duties. In this situation, the whole time spent on-call is working time.
2. The second is where the worker is free to do whatever they want during the on-call shift but, when told to work, they must follow the order. This could mean they spend the shift for example, at home, shopping, at the theatre, essentially anywhere but at work. For this type of on-call working, only time spent carrying out tasks are considered as working hours.

Hybrid On-Call worker

There’s also a hybrid type of on-call where the worker is free to do whatever they want during the shift, subject to restrictions. These restrictions could be that the worker:

• Must be able to attend the workplace within a certain period of time, e.g. 15 minutes from the notification time.
• Must live in a location within a set distance of the workplace at all times, for example two miles away from the workplace.
• Cannot consume alcohol.
• Must be able to drive at all times.
• Must be awake within set times e.g. from 9am – 5pm.
• Must be contactable at all times.

As these restrictions mean the worker cannot spend the on-call time at their leisure carrying out their activities, it is likely this time spent on-call is working time.

Basically, the more restrictions in place, the more likely the chance they are at the employer’s disposal and therefore working

Why does it matter that On-Call time is working time?

Having time spent on-call classed as working time will impact on:

• The maximum 48-hour working week, unless the worker has opted-out.
• Minimum rest breaks.
• Minimum rest periods.
• National minimum wage compliance where the staff members receives close to statutory rates.

What rules should an Employer have in place?

It is vitally important that employees carrying out on-call work understand the company’s rules and procedures. After all, they are often required to carry out their duties in an emergency, or within a short time period. As they work outside of normal working hours, it is likely they’ll be working without direct supervision or management control.

What should an employer’s on-call policy set out?

An employer’s on-call policy should set out the following:

• The responsibilities of employees who are on-call.
• Any restrictions placed on workers whilst they are on-call.
• The duties their role involves.
• How you’ll contact the employee to carry out the for (for example, if you’ll send them a text message or call them).
• What to do once the employee receives contact for example if the employee has to attend work first or can they go straight to the job?
• Whether additional benefits are in place for on-call work for example higher pay or overtime.
• Health and safety rules for on-call workers.

What are the issues with Calling On-Call Staff out of hours?

Due to the nature of on-call work, you may have to make a phone call after work hours. The law depends on the employees contract of employment. If the employee is paid every hour and is exempt from overtime, then ringing them and asking about work isn’t illegal. But do bear in mind that a call at midnight may not always be welcome!

If your employee is non-exempt then you don’t pay them for calls or emails during the working week or weekend. 

As an employer, you should establish in your office manual your stance on this matter so your staff is aware of the company procedure.

For further information on on-call working whether for employers or employees, why not contact one of Alexander JLO’s leading experts in Employment Law and see what we can do for you?

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 24th May 2020 and is correct at the time of publication. With decades of experience in almost all areas of law, Peter is happy to assist with any legal issue that you have. His profile on the independent Review Solicitor website can be found Here