The Working Time Regulations 1998 (WTR) can be problematic in so far as they only differentiate between working time and rest time, yet do not cover on-call or stand-by working practices. The rules regarding working time from a national minimum wage perspective are also different. It can potentially be a problem for social housing providers when managing their team of maintenance and repair operatives to determine what is working time for the purpose of national minimum wage entitlement and then what is working time attracting benefits afforded under the WTR such as rest breaks, holiday entitlement etc. We must look to case law for guidance, such as a recent case involving several police employees working 12-hour stand-by shifts during the week and 24-hour shifts at the weekend. This case looked at the WTR.

Summary of facts 

The claim was bought by nine officers who worked for the Covert Authorities Bureau in Humberside taking requests from police officers to obtain data as part of an ongoing case. Sometimes the data was needed urgently because of a threat to life, so the officers would work core business hours and then were required to work an on-call basis outside of these hours. They did not need to be at any police building during on-call hours. Whilst on call or on standby, the officers were paid an on-call allowance. The guidance outlined that they did not need to be at home during the on-call periods but could be up to 30 minutes away, although there is some dispute as to whether the guidance was mirrored by reality. The officers brought a claim for their right to take daily rest breaks arguing that on-call time was working time for the purpose of the WTR. 

The judgment

The current position as decided through case law regarding on-call time is this: when on-call, duties must be carried out within a narrowly defined geographical area as determined by the employer, then that on-call time is working time regardless of how much of that time is spent working; and when that geographical area is not so narrowly defined but the constraints placed on the employee have a significant impact on their ability to carry out their social and personal interests then that on-call time is working time.   

The judge in this case did not make a dramatic turn away from this guidance but rather usefully confirmed the direction of travel and highlighted the following:

• The number of times the officers were called during their on-call periods;
• the requirement to respond to the call and start work immediately; and
• the frequency and unpredictability of the need for the officer to respond within a limited time frame. 

It was concluded that these aspects limited the officers’ ability to spend any of their on-call time carrying out their own interests such as going out to a restaurant or to the cinema. For these reasons, he deemed their on-call time as working time. 

Potential implications for social housing providers

This case is likely to be of particular interest to social housing providers planning future triaging of repairs by trades staff in light of Awaab’s law which will require social housing landlords to adhere to strict time limits to address dangerous hazards such as damp and mould in their properties. 

While we still await the Government’s response to the consultation on Awaab’s Law, it is proposed that registered providers must action emergency repairs as soon as practicable and, in any event within 24 hours and that these timescales be set out in legislation. This has the potential to impact trade operatives' on-call arrangements. 

Most social landlords already have in place repairs and maintenance policies that stipulate different timeframes for ‘emergency’, ‘urgent’ (in some cases) and ‘routine’ repair. It is acknowledged that the target timeframes for emergency repairs are typically within 24 hours, however, the required response time for emergency hazards will vary according to the nature of the issue and with the proposal to expand the scope of Awaab’s law from complaints of damp and mould to include 29 additional health and safety hazards, resources will be even more stretched with response times at risk of being shortened to ‘immediate’ or very tightly controlled to deal with demand, with the risk that on-call time becomes working time.

Learning points

• In the absence of express legislation on this issue, each case must be examined on its own facts through the lenses of recent case law.
• A geographical freedom whilst on-call will have no or little impact if the response time required is immediate or tightly controlled – one will negate the other.
• As ever, a tribunal will look to the reality of a situation not to guidance which, as in this case, was produced at the height of a dispute but allegedly hadn’t previously been part of the officers’ contracts. Is your guidance mirrored in reality and likewise the expectations of those who use the on-call service? One of the witnesses noted that following a call at 6am, the Inspector making the call was disgruntled to be told it would take 10-15 minutes to log into the necessary data given they had been asleep despite the guidance stating a 30-minute response time. 
• Are you keeping data on the number of calls and the nature of the calls? Assessing the number of calls, the frequency and response time will help to create a picture of the reality of the on-call arrangement. This can then help in a number of ways including setting relevant and realistic guidance. 
• If employees’ on-call time is working time then how are you monitoring their rest breaks and how are you ensuring that the service required from the on-call provision is meeting the standards required? You may need to ensure that guidance for the relevant employees notes that these rest breaks are to be taken when not responding as part of their on-call duties. 
• The more robust time scales for repairs anticipated with Awaab’s Law will affect many social housing providers’ working practices by potentially increasing the number of operatives on call and shortening response times. This could widen any liability from failing to identify working time and its accrued benefits. 

If you would like further information on this please do not hesitate to contact me for specific advice and guidance.