Do you have workers who are required to stay overnight or work on-call from time to time? If so, this may have implications under both the Working Time Regulations and the National Minimum Wage Regulations.

Under the Working Time Regulations a worker will usually be entitled to the following rest breaks:

• a break of 20 minutes’ uninterrupted rest when a day’s work is more than six hours;

• a daily break of 11 hours’ uninterrupted rest; and

• a weekly break of 24 hours’ uninterrupted rest (which may be substituted for a fortnightly break of 48 hours’ uninterrupted rest at the employer’s choice).

A period of down time will only qualify as a rest break for the purpose of Working Time if the worker knows at the start of the break that it is a rest break and that it will be uninterrupted.

Any period of time during which a worker is required to stay in staff accommodation for the purposes of being on-call cannot be designated as a break for the purposes of Working Time because the worker is required to remain in the workplace and available for work. The law views this as working time rather than a rest period – even if the worker is allowed to sleep.

This has two significant implications:

Firstly, it will be necessary to make arrangements to ensure that the worker still gets the breaks they are entitled to.

Secondly, the worker may be entitled to receive the National Minimum Wage for any period of time spent on-call. This has been tackled by the Employment Tribunals and Employment Appeal Tribunal in several cases; the result is a fairly confused area in which each individual case will depend on its facts.

A key factor will be whether the worker is required to remain on work premises during the period of time spent on call. For example, in Anderson v Jarvis Hotels plc, Jarvis Hotels had a fire safety policy that required two members of staff to remain in the hotel overnight. In accordance with this policy, Mr Anderson was required to sleep at the hotel on designated nights and was liable to disciplinary action if he left the hotel on those nights. The Employment Appeal Tribunal held that he was employed to sleep overnight in the hotel and accordingly this time was working time for the purposes of the National Minimum Wage. If he had been able to sleep at home on those nights, but to respond to emergency calls then it is likely that the outcome would have been different.

In cases of live in workers in residential or nursing homes, a lot will turn on how the period of on-call time is dealt with in the contract of employment. For example, in a case where a worker’s contract provided for her to work four days a week for 24 hour on site cover it was held that all of the on-call time (including any time spent asleep) was working time for the purposes of the National Minimum Wage. By contrast, in a case where a worker’s contract provided for her to work fixed hours during the day and to be on-call in her flat (which was provided to her as part of her job) at night it was held that only the proportion of the on-call time during which she was actually awake and working was working time for the purposes of the National Minimum Wage.

If you require any advice on the Working Time Regulations or National Minimum Wage Regulations in general or in relation to the issue of live in workers and on-call work then Eaton Smith would be happy to assist.

For more assistance with employment law issues or to discuss our employment law support packages then please contact Kate Booth on 01484 821309 or katebooth@eatonsmith.co.uk
Posted Friday 17th of February 2012