Mrs Hughes was employed by Graham and Lynne Jones at Graylyns Residential Home, Dyfed. Wales. Hughes was a part-time care assistant paid at a rate of £5.05 per hour for eight hours a week. She was also required to be on-call between 9pm and 8am seven days a week to assist with any incidents at the residential home.
In return for her on-call duties, Hughes was permitted to rent a flat near the residential home at a subsidised rent. She was also paid half-an-hour’s pay for each call out. Hughes was called out to give assistance at the residential home about twice a month.
She alleged that Mr and Mrs Jones were in breach of the Working Time Regulations (WTR) for failing to allow her adequate rest breaks. Hughes also claimed that she was paid less than the national minimum wage in breach of the National Minimum Wage Regulations (NMWR).
The employment tribunal dismissed Hughes’ complaints under the WTR and the NMWR. It found that as she was on-call at her own home, she was only at work when a call-out occurred. Therefore, she had failed to show that she did not receive adequate rest breaks. Further, as Hughes was paid in respect of call-outs attended, she had failed to show that she had not received the national minimum wage.
Hughes appealed. The Employment Appeal Tribunal (EAT) upheld her appeal. It referred to the earlier case of MacCartney v Oversley House Management, and held that Hughes was entitled to be regarded as working when she was on-call, regardless of whether or not she was called out during this time.
In this regard, the EAT found that Hughes’ home was not separable from the workplace. Therefore she had not received the relevant rest breaks. Further, she had not received the national minimum wage, which was payable for all her working hours, save the time when she was asleep.
The issue of whether time spent on-call is working time for the purposes of the WTR has been the subject of a number of cases over the years.
This case continues the most recent line of authority, which deems time spent on-call to be working time, regardless of whether the employee is required to perform any duties.
It appears that the relevant question to be asked is whether the employee is required to be present and remain available at a place determined by the employer during any on-call time. If so, that time is likely to be working time.
However, it is important to note that amendments to the WTD are being considered at a European level. The European Council has recently agreed proposals to split on-call time into active and inactive time. Unless member states stipulate otherwise, only active on-call time will be working time.
The proposed amendments have yet to be agreed by the European Parliament and may therefore be subject to change. The final proposals are not likely to come into force before 2010.
David Bradley is a partner at DLA Piper