Seven employees, who process police officers' requests for data, claimed their hours on standby duty should be classed as working hours under the Working Time Regulations 1998.
Employees were previously not paid for all hours on call, but only when they were called out. However Unison, the union representing the claimants, said they should be compensated for their entire standby shift.
The tribunal found they were in fact working hours and ordered CAB to provide revised directions for the future management of
the on-call hours within seven days of the judgment.
Joanne Moseley, employment lawyer at Irwin Mitchell, told HR magazine that on-call time is classified as working time when employees are restricted in what they can do.
She said: “Working time includes any period in which a worker is working at their employer’s disposal and carrying out activities or duties. Time spent on call may or may not satisfy this definition. If a worker is free to do as they wish and at a place of their choice whilst on call, the time will not usually be treated as working time.
“In this case, the employer significantly restricted what workers could do while they were on call because of the need to respond urgently to calls and to start work immediately afterwards. In particular, they had to remain fully alert and that inhibited their ability to switch off and relax, or to fully engage into other activities. This tipped the balance in favour of treating the time as working time.”
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The claimants were employed for core business hours from Monday to Friday 7am to 4pm; outside these hours they were retained on an on-call basis, either on 12 hour shifts (during the week) or 24 hour shifts at weekends and bank holidays.
The police force relied on being able access to data at all times to respond to urgent or life-threatening situations.
During on-call time workers were paid an hourly rate for the time they were called out. The tribunal analysed that during the dates relevant to the claim, CAB staff were called on 42% of their standby shifts, and the average time working when called out was 2 hours 51 minutes.
The claimants, who were members of Unison, had an ongoing dispute with CAB about how to categorise their on-call time. Unison representatives said the arrangement breached their right to a daily rest break and they should be compensated for their whole standby period.
The respondents claimed the staff were required to respond to requests within half an hour while on standby to account for time to retrieve their laptop or relocate to a location where there was privacy.
The respondents also claimed staff had been required to sign a standby agreement as part of their contract that clarified they were expected to remain contactable at any time, remain at home or in the confines of the police force area, not consume alcohol, be near a vehicle, keep a log of their callouts, and keep paperwork to record their callout.
However, the tribunal found none of the claimants had signed the agreement.
One claimant gave evidence to the tribunal that the employees were expected to respond immediately to a callout. She also said she would stay at home while on call, and never made social or family plans during that time.
Employment Judge Jones ruled that the combination of expectations on the claimants while they were on standby “significantly degrades the use to which the available time can be put” and would therefore be classed as working time.
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Alan Lewis, employment partner at Constantine Law, encouraged employer to re-evaluate their on-call arrangements in light of this judgment.
Speaking to HR magazine, he said: “The judgment establishes that on-call hours can be considered working time, even when employees are not physically at the workplace.
“Employers should carefully evaluate their on-call arrangements in light of this judgment to ensure compliance with working time regulations and fair treatment of employees.”
Shantha David, head of legal at Unison, told HR magazine this case shows employers should have an agreement for standby duties and how that will be classed under working time regulations.
"This case shows employers must have appropriate systems in place to accurately record hours that count towards rights under the regulations, and this can go beyond a collective agreement about standby duties," she commented.
“Recent legislation attempted to water-down these requirements, but this case shows the dangers of that. It would be far safer for employers to reach agreement on what’s required on standby duties, then record those times as working hours for the purpose of rights under working time regulations.”
