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Feb 2018

Working “on-call” – does this constitute working time

If you are a worker or an employee who works “on-call”, the case of Nivelles v Matzak may now have broadened the scope of your legal rights.

It used to be the case that time spent “on-call” or “stand-by time” when away from the workplace and not carrying out duties was not regarded as “working time”. The European Commission had, for some time, been consulting on changing the rules concerning “on-call” time and Nivelles has taken a step towards changing this position for the benefit of the worker.

If, during an on-call shift, you are under a duty to respond to calls and be at the place of work within eight minutes of that call, this may now be constituted as “working time” following Nivelles. The Working Time Regulations 1998 (“the Regulations”) state that working time is when someone is “working at his employer’s disposal and carrying out his activities or duties”.

In Nevilles, the European Court of Justice (“ECJ”) held that “stand-by time” spent at home must be regarded as “working time” where “the geographical and temporal constraints imposed by the employer objectively limit the worker’s opportunities to pursue personal and social interests.” In other words if you are required to be physically present at a place determined by your employer (even in your own home) and available to work at short notice, making it impossible for you to choose where to be, then this would come within your normal working duties and classified as “working time”. It will, of course, depend on the extent to which you are restricted. If, therefore, a worker is required to be accessible but they are not in any other way restricted then this is unlikely to be considered to be working time. Each case will be considered subjectively.

Any time considered to be “working time” will be governed by the Regulations, which apply to all workers and employees and govern the time that people in the UK may work. All workers should be aware of their rights under the Regulations and all employers must be aware of the importance of complying with them. The Regulations govern the hours most workers can work and set limits on an average working week (48 hours). Further, they provide that a worker must have 11 consecutive hours’ rest in any 24-hour period and is entitled to a 20-minute rest break if the working day is longer than 6 hours. Again, this should be born in mind for anyone employed or contracted to work “on-call” or for any employers that encompass such working arrangements with their workers.

Employees and workers must also be aware of the importance of ensuring that they are adequately remunerated for time spent “on call”. Any time considered to be “working time” entitles an individual to be paid for this time.

If you would like further advice on this topic, whether you are a business or an individual, please contact a member of our Employment Law team.

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