Employers with staff 'on call' will soon see major changes to their working practices after an important decision by the European Court of Justice on the interpretation of the Working Time Directive. That’s the verdict of Susan Mallalieu, head of employment at national law firm Shoosmiths. She is warning firms that they will need to review the way they operate their businesses in light of the ruling.
The recent decision, made in the case of a German doctor who sued his country’s national health service, stated that the doctor was deemed to be working – even when asleep – if he was required to be ‘on call’ at his place of employment. The German doctor’s employers claimed that if he was inactive during 'n call' hours, then it should be regarded as rest periods. But the ECJ held that all the time he spent 'on call' if required to be physically present at the hospital, constituted working time.
She explained: "This decision, and several other recent rulings from Europe and the UK on the same subject, will have a huge impact on the treatment of English workers who are 'on call'. In the past, the English courts' interpretation of ‘working time’ required more than the mere presence of an employee at the workplace, they also had to be actually working. The ruling from this case demonstrates that the definition of 'working time' has evolved considerably within the last few years – with significant implications for workers in many sectors."
Another ruling by the ECJ, in a case concerning Spanish doctors, held that time spent 'on call' away from the workplace does not count as working time. But the issue is made more complicated if an 'on-call' worker's place of work is also their home – as seen by two recent UK cases, brought by wardens living in sheltered accommodation.
In those cases, the ET held that 'on-call' periods spent in the wardens' homes could be classified as working time if the employee was at the employer’s disposal and required to be on the premises to carry out duties, such as responding to residents' telephone calls and dealing with emergencies.
UK businesses now need to ensure that:
- Contracts of employment are clear about what amounts to normal working hours and what constitutes rest hours;
- Workers are guaranteed a minimum of 11 hours’ uninterrupted rest per day;
- And an ‘opt-out’ agreement is in place to enable the worker to work more than 48 hours per week.
Susan added: "These cases indicate a shift in the UK’s interpretation of 'working time' to reflect that of the European Court, and the willingness of our own courts to adopt a stricter view of what constitutes rest periods.
The DTI will undoubtedly need to review its current Regulatory Guidance in light of the recent ECJ and UK decisions."