1.    Many employers have a requirement for their employees to provide an on call service under their contracts of employment.  Examples of employees who may be required to provide an on call service include doctors, those employed in any type of business that requires round the clock availability and care workers, who provide either residential or non-residential services to the elderly and infirm.  Employers are usually concerned to ensure that they comply with the current legal requirements in respect of minimum wage payments and adequate time off and rest breaks for on-call employees.
 
2.   On Call Work
In order to establish whether or not a particular employer is complying with current legal requirements it is necessary to consider whether the employer is compliant with:
(i)                  The National Minimum Wage Regulations ("NMW Regulations");
(ii)                 Working Time Regulations ("WT Regulations")
(iii)               The relevant terms of the individual contract.
 
3.   National Minimum Wage
3.1 The National Minimum Wage Act 1998 introduced with effect from 1 April 1999 provides the right to receive National Minimum Wage ("NMW").  The details and methods of calculation are set out in the National Minimum Wage Regulations 1999.  The Minimum Wage is expressed as a minimum hourly rate, currently £5.05 per hour for workers aged 22 and over and £4.25 per hour for workers aged 18 to 21.  The rate is due to increase from October 2006 to £5.35 per hour and £4.45 per hour respectively.  If a claim for breach of NMW is presented to an employment Tribunal, then the Tribunal will need to determine the hours for which minimum wages must be paid. 
3.2 Firstly a Tribunal will look at the pay reference period.  The pay reference period is a period by reference to which a worker is paid i.e. the period for which salary is payable on an instalment basis.  If an employee is paid weekly the pay reference period will be a week, if the employee is paid daily, the pay reference will be one day. For workers who are paid monthly the pay reference period will be one month.  The maximum pay reference period is one month.  The amount of salary that should be allocated to any particular pay reference period is outside the scope of this article, however further information is available on request.  The worker must be paid the minimum wage on average for the time worked in the pay reference period.
3.3 The hours for which NMW must be paid will depend on the type of work that the worker is doing.  Under the Regulations there are four different categories of work, (1) Time work, (2) Salaried hours work, (3) Output work and (4) unmeasured work. The first step in establishing whether or not minimum wage is being paid is always to work out which type of work is being undertaken.
 
4.   Timework
If a worker is paid according to the number of hours he is at work, the work is timework. 
 
5.   Salaried Hours Work
5.1 Salaried hours work is where a worker
      (i) is paid under his contract for a set basic number of minimum hours in a year;
      (ii)is entitled under his contract to an annual salary; and
      (iii)is paid in equal weekly or monthly instalments. 
 
6.    Output Work
Output work is work that is paid according to the number of things that a worker makes or tasks he performs.  It is usually known as piecework. 
 
7.    Unmeasured Work
Unmeasured work is work other than timework, salaried hours work or output work.  It would usually apply to work where there are certain tasks to be done but no specified hours or times when they must be done
 
Detailed  guidance is provided under the NMW Regulations
 
8.    Time spent on call and calculation of NMW
8.1  The position concerning whether or not an employee is entitled to receive NMW in respect of time spent on call is not clear cut.  The case law in this area is conflicting and until the conflicting case law is resolved in the higher courts it is not possible to give definitive guidance on the correct legal position.
8.2  Under NMW Regulations the following provisions are set out
         Time Work - Regulation 15 - (1) In addition to time when a worker is working, time work includes time  when a worker is available at or near a place of work, other than his home, for the purpose of doing time work and is required to be available for such work except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being time work when the worker is awake for the purpose of working.
         Salaried work - Regulations 16 - (1) Time when a worker is available at or near a place of work, other than his home, for the purpose of doing salaried hours work and is required to be available for such work shall be treated as being working hours for the purpose of and to the extent mentioned in regulation 22(3)(d) and (4)(b) except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being working hours when the worker is awake for the purpose of working.
8.3  The case law concerning interpretation of the above provisions and when they come into play is both controversial and conflicting: 
8.4  Conclusions on NMW
(i)   The employee is on call but is free to carry out leisure/sleep activities at any geographical location as he may desire and the employee is merely contactable e.g. by way of a pager or mobile phone;  - NMW will not be payable in respect of this time – Davies and others v London Borough of Harrow.
(ii)  The employee is on call and is tied to his home address as a geographical location; - NMW will be payable - British Nursing Association v Inland Revenue.
(iii) The employee is on call and is tied to the employer's premises as a geographical location - NMW will be payable in respect of this time – Davies and others v London Borough of Harrow.
(iv) The employee is on call and tied to their home which is also the employer's premises. – NMW will be payable according to Davies and other v London Borough of Harrow and MacCartney v Oversley House management (EAT) but not according to Auld v Aberdeenshire Council (ET).  It should be noted that MacCartney was decided at a higher level than the Auld case and Auld may well be appealed.
 
9.   Working Time Directive
9.1 The case law surrounding the Working Time directive ("WTD") gives much clearer guidance
9.2 The purpose of this article is to examine the circumstances when time spent on call is likely to be viewed as working time under the Working Time Directive and therefore the Working Time Directive in the UK.  For further advice on provisions surrounding entitlement to leave and rest breaks, please contact us.
9.3 Conclusions on WT
(i)  The employee is on call but is free to carry out leisure/sleep activities at any geographical location as they may desire and the employee is merely contactable e.g. by way of a pager or mobile phone; Only the time spent during the actual provision of services when on call but away from the work place will count as working time - SiMAP/Jaeger ECJ rulings.
(ii) The employee is on call and is tied to his  home address as a geographical location; - If a worker is a home worker or carries out work at home with the prior agreement of the employer then this is likely to count as working time where the employee is unable to go about his normal social activities i.e. to come and go as he pleases.  SiMAP/Jaeger ECJ rulings.
(iii) The employee is on call and is tied to the employer's premises as a geographical location; -This will count as working time- see the SiMAP/Jaeger ECJ rulings  - time spent on-call at work constitutes working time for the purposes of the Working Time Directive, even where the person concerned is permitted to rest when their services are not required.
(iv) The employee is on call and tied to their home, which is also the employer's premises. –This will count as working time for purposes of WTR - Davies and other v London Borough of Harrow / MacCartney v Oversley House management (EAT) / SiMAP/Jaeger ECJ rulings.
9.4 The European Commission is considering amending the Working Time Directive.  Two new definitions of 'on-call time' and 'inactive part of on-call time' may in the future to be added to the existing definitions of 'working time' and 'rest period'.
9.5 Under the amended Directive on-call time would be time during which the worker was obliged to be at the workplace so they can be called upon to carry out their duties. The inactive part of on-call time would be when the worker was still on- call, but not actually carrying out their duties. The inactive part of on-call time would not be classified as working time, unless under national law or by collective agreement it was deemed to be so.
9.6 Contractual Provisions
Finally the recent case of Anderson v Jarvis Hotels (EAT) highlights the fact that regardless of whether there is compliance with NMW or WTR, where the contract provides for payment at an hourly rate, then if an employee is deemed to be working for a period of time spent on call, he will be entitled to payment at the contractual rate in respect of that period of time. In the Anderson v Jarvis case, it was held that where an employee is at his employers disposal during periods of sleep over, because he was required to be at the employers premises for a stated purpose, then this is working time for which the employee was entitled to receive payment at an hourly rate pursuant to the contract of employment.  The EAT considered that guidance may be taken from the courts interpretation of working time under the WTR and NMW, when it comes to consideration of working time for the purposes of contractual interpretation. Although each case will turn on its own facts this case is authority for the proposition that where the employee is required to be at premises of his employers choosing and is also required to be available to carry out tasks for the employer (even if the frequency of the employee actually being required to carry out those tasks is minimal) then that will be considered to be working time for the purposes of interpretation of the contractual provisions.

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