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29th August 2014

‘On call’ workers do not need to be at the workplace to be “working”

In the recently decided case of Truslove and another v Scottish Ambulance Service, the Scottish Employment Appeal Tribunal (EAT) considered whether relief ambulance paramedics were working, and therefore not taking a rest break, during ‘on-call’ time for the purposes of the Working Time Regulations 1998 (WTR).

The facts of the case were that Mr Truslove and Miss Wood (the claimants) were ambulance paramedics. Sometimes they were required to provide nightly relief cover at different ambulance stations and, during this on-call time, they were obliged to stay at accommodation of their choice within a three-mile radius of the relevant station. They had a target, rather than an absolute requirement, of responding to a call within three minutes. As a result of this, the location of the stations meant that they could not stay at home.

In reaching the original decision on the case, the employment tribunal compared the circumstances of the claimants to the facts of earlier decided cases which had contrasting decisions.  Referring to European case law, the employment tribunal considered that on-call time was working time because it involved almost a form of confinement to one specific location.  However, the employment tribunal also considered the findings from a previous domestic case (Blakley v South Eastern Health and Social Services Trust [2009]), which had held that on-call time did not mean the whole time was working time because the worker was not required to remain at a specific location determined by the employer – even though they were required to remain contactable and in a position to respond promptly.

The employment tribunal ultimately found that the claimants’ circumstances were more comparable to the decision in the case of Blakley rather than the findings of European case law.  Accordingly, the employment tribunal held that all of the claimants’ on-call time should not be regarded as working time, and therefore it was deemed to be a rest period for the purposes of the WTR.

The claimants subsequently appealed the decision to the EAT.  The Scottish EAT allowed the appeal and held that the paramedics were not at rest but working when on call.

The EAT held that the employment tribunal had been wrong to compare this case to Blakley, as the Court of Appeal in Blakley did not actually find that the worker was obliged to be present and available at the workplace or a place designated by the employer. In contrast, the EAT noted that the claimants in the present case had to remain in a specific radius of an area determined by their employer.  In addition, the EAT also held that earlier case law did not require a form of near confinement to one specific location for time to be considered working time.

In reaching its decision, the EAT also set out some useful guidance for determining whether time spent on call is working time or a rest period:

  • Time spent that is not work is rest and vice versa. Therefore, the question is also whether the person is not at work.
  • The distinction between rest and work is whether the place at which a worker is required to be present is or is not determined by the employer.
  • It is not necessarily the scope of the restrictions that is relevant, but the fact that the employer is specifying the location.

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