An ECJ ruling that workers should be paid if employers require them to be on
call is likely to have important implications under the Working Times
Regulations
Decisions in two important cases in
the last few weeks have again focused attention on the definition of ‘working
time’. Both relate to on-call hours.
It was reported that the London Borough of Harrow was considering an appeal
after losing a case brought by live-in wardens of sheltered homes for the
elderly. The wardens worked a basic 37-hour week, but were required to be on
call 24 hours a day, five days a week. This impacted on their social and family
lives, and led to social isolation.
The tribunal concluded on-call hours were to be considered as working hours,
for which the wardens were entitled to be paid, and that they should be
entitled to proper daily rest as set out in the Working Time Regulations.
Any appeal by Harrow would appear to be doomed in the light of the latest
decision from the European Court of Justice (ECJ). In Norbert Jaeger v
Landeshauptstadt Kiel, the court revisited the issue of the treatment of the
working hours of doctors on call, which it had previously addressed in the
Sindicato de Medicos de Asistencia Publica v Conselleria de Sanidad y Consumo
de la Generalidad Valenciana (SIMAP) C-303/98 case. In the latter case, Spanish
junior doctors obtained a ruling that being on call at their place of
employment constitutes working time.
In Jaeger, a question arose that had not been dealt with in SIMAP. On-call
doctors had their own room with a bed in the hospital, where they might sleep
when not called out to attend to patients. The court was asked whether all
on-call duty, even time spent asleep, must be treated as working time.
The court followed the opinion of the Advocate General and agreed that it
should. It ruled that the decisive factor in defining working time in relation
to doctors on call in the hospital itself, is whether they are required to be at
the place determined by the employer, and available to provide their services
immediately if the employer needs them.
What are the wider implications of these cases for other employers? Any
employer who has staff on stand-by should have a fresh look at the terms it
imposes on those workers.
If they are constrained to remain on, or very close to the employer’s
premises, there may be a working time issue. This depends on whether there are
significant constraints on the employee being able to pursue leisure interests
or family life.
Employers in local government and the NHS need to re-appraise their on-call
practices immediately if they are to avoid risking tribunal proceedings with
corresponding, potentially significant claims for back-pay for on-call time
that should have been classified as working time, but was unpaid.
More complication looms on the horizon for NHS employers as, from 1 August
2004, junior doctors’ hours will be constrained to 58 hours per week, and all
rest periods will apply.
There will have to be a wholesale rethink of the current arrangements, and
maybe we will see employers asking doctors to sign opt-outs – providing
opt-outs are still available.
A further issue, which may arise, is whether those working at night will be
classified as night workers and therefore subject to a maximum eight-hour
shift.
In the meantime, the London Borough of Harrow may wish to concentrate its
energies on negotiating opt-outs with its sheltered homes wardens.
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There will be a price to pay for additional wages, but the reality of
recruiting additional workers to cover all the 76 on-call hours, which it had
previously demanded of its wardens, may make the use of opt-outs more
realistic, at least in the short-term.
By John Evans, Head of employment, Coudert Brothers,
London
