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ESTABLISHING WHETHER A WORKER OR EMPLOYEE IS ENTITLED TO BE PAID FOR BEING AVAILABLE, AT OR NEAR A PLACE OF WORK


For many working in the care sector, this is a thorny issue and one that has taken up a great deal of judicial time in recent years. The Employment Appeal Tribunal (EAT) has recently given judgement in the combined appeals of Focus Care Agency Ltd v Roberts and two other cases which were heard together. The judgment serves as a reminder that there is no ‘one size fits all’ answer to the question but it does at least give some useful guidance on how to arrive at the right answer. The central issue in all three cases was whether ‘on call’ workers were entitled to be paid at least the National Minimum Wage (NMW)for time spent on call or, as the judge preferred to put it, for time when they were ‘available’ at or near to their employers’ premises whether or not they were actually called out. The EAT acknowledged that although many employers and employees would like clarity, in this area of the law there are no hard and fast rules. The fact that there is little or nothing to do during a shift doesn’t mean employees are not working; their mere presence and availability to deal with a situation that might arise may be enough to establish that they are ‘working’ and so entitled to remuneration. Whether workers are working and can demand their full hourly pay for ‘on call’ time, however, depends on the specific facts of each individual case. The EAT offered some useful pointers that may help to determine whether on-call time is to be treated as working time. The nature of the business in which workers are employed, the work they do, the contractual pay arrangements to which they are subject, whether absence while on call might result in disciplinary sanctions and whether the employer is legally required to have an employee present at the workplace or all relevant factors. It may also be appropriate to assess the level of responsibility attaching to the employee’s/worker’s role while ‘on call’ and the extent to which his or her personal life is restricted by the need to be ‘available’ at or near the employer’s premises. Although there will inevitably be cases where it is difficult to see which side of the ‘working/not working’ line the facts fall (and so whether hourly remuneration is payable) a common-sense and realistic appraisal should help employers and employees to avoid costly and time-consuming disputes. If this is a topic that affects you and you would like to discuss your particular case with us, please call us on 01308 459459 or contact us online.

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Essential Employment Law Services Ltd.
27A Dreadnought Trading Estate
Magdalen Lane
Bridport
Dorset
DT6 5BU

Phone: 01308 459 459
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