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On call workers may be classified as working

In Truslove and another -v- Scottish Ambulance Service UKEAT/0053/13, the Scottish EAT held that relief ambulance workers were working during on-call time and not taking a "rest break" for the purposes of the Working Time Regulations 1998 (the "WTR").

The case in question involved two paramedics who provided relief cover to other ambulance stations within the area overnight. During this time they were obliged to stay away from home in accommodation of their choice due to the location of the other stations, and had a target of responding to any call within 3 minutes.

The WTR provide that a worker is working any time that he is carrying out his duties and is at the employer's disposal. The WTR place limits on the time when a worker may work, and the rest periods that they must be provided. The ambulance workers claimed that the shifts they were being required to work were in breach of the WTR, and in particular that times when they were working on-call could not be rest periods for the purpose of the WTR.

European cases suggest that when a worker is obliged to remain in the workplace and available for work this constitutes working for the purposes of the WTR. By contrast, in the case of Blakley the Employment Tribunal suggested that just because a worker was required to be contactable and in a position to respond promptly did not mean that their on-call shifts should be classified as "working time".

The Employment Tribunal compared the circumstances of the paramedics to the claimant in Blakley as they were not required to remain in their workplace while they were on-call. Consequently this meant that their on-call shifts could be classified in part as rest periods.

On appeal, the Employment Appeal Tribunal sitting in Edinburgh held that the circumstances of the paramedics were different to those in Blakley as they were obliged to remain at a place specified by the employer - albeit that they only need be in a 3 mile radius of a specific location.

In arriving at the decision that the paramedics should be considered to be at work for the purposes of the WTR while on-call, the EAT stated that the following should be considered, which provides useful guidance as to the questions that an employer should consider when determining whether an on-call employee should be considered to be at work.

1. During an on-call shift, could the worker be described as not being at work?
2. Are you specifying that the worker is obliged to remain at a location, or within a set distance of a location?
3. Could the time that the worker is on-call be considered his own?

If the answer to the first and third questions is "No", and the answer to the middle question is "Yes" then it is likely that any time the employee spends on-call should be classified as working time for the purposes of the WTR, and the employer should ensure that adequate provision for rest periods is built in to the worker's schedule. Alternatively, if practical, employers may wish to review the restrictions that they place on on-call workers.

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