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Don't fall foul of the Working Time Regulations 1998

Under the Working Time Regulations 1998, "working time" is defined as "any period during which a worker is working, carrying out duties, and at the employer's disposal." Whilst on the face of it this definition appears to be fairly straightforward, in practice there are several problem areas relating to its application, which has resulted in "working time" cases appearing frequently in employment tribunals.

Sleep-over workers

In the recent case of Whittlestone v BJP Home Support Ltd [2014], it was held that where a worker is required to spend certain hours at a particular place of work, with a risk of facing disciplinary action if they leave that place and being at the disposal of the employer during this time, this will normally constitute working hours.

This case involved a night-time care worker who slept over at her place of work. Whilst this worker was rarely called upon to work during her night-shift, it was held by the Employment Appeal Tribunal ("EAT") that her job was to be there, just in case she was needed. As a result, the duration of her night-shift was "working time."

On-call workers

The recent Scottish EAT case of Truslove and another v Scottish Ambulance Service [2014] provides further clarification on what should be considered as "working time", this time in relation to workers who are on-call.

This case involved ambulance paramedics and whether they should be considered to be "working" for the duration of any on-call period which they worked.

The Scottish EAT held that because the ambulance paramedics were contractually required to stay within a three-mile radius of the ambulance station and had a target to respond within three minutes to any call out, this was "working time" for the purposes of the Working Time Regulations.

This case widens the scope of the law in that workers who are not required to be in the workplace whilst on call but are nevertheless subject to certain limitations, are considered to be "working" for the entire duration of their on-call period.

The implications

The cases of Whittlestone and Truslove have a considerable impact on employers.

First, it is important that workers are paid the National Minimum Wage for all "working time." Previously employers have fallen foul of this rule in paying workers a night shift or on-call allowance which (when divided over the number of hours worked) falls short of the National Minimum Wage.

Also, employers should ensure that workers are allowed to take their minimum daily rest period of 11 hours' uninterrupted rest per day, or (if applicable) an equivalent period of compensatory rest. Workers are also entitled to a rest break of 20 minutes when a day's working time is more than 6 hours.

Local authorities employ a huge number of employees on a variety of different types of contracts. It is important to make sure that you do not fall foul of the Working Time Regulations 1988, particularly in relation to employees with unusual shift and on-call working patterns.

If you would like any further advice on this area please contact Charles Pallot on c.pallot@ashfords.co.uk.

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