Are ‘On-Call’ Workers Working?

Focus Care Agency v Roberts

Certain industries, perhaps most notably the care industry, rely on workers being on-call; sometimes even sleeping at work so that they’re on site and available to help if needed. The perennial question, for employment law purposes, is whether these workers are ‘working’ – and entitled to the rights that go with that (not least the National Minimum Wage) – for the entire time, and not just when they are awake and attending to duties.

That issue presented itself to the Employment Appeal Tribunal in Focus Care Agency v Roberts, one of three cases heard together. Sadly, it didn’t lead to a definitive answer on whether or not workers who sleep-in are entitled to the National Minimum Wage. But here are some of the factors that the EAT said should be taken into account in these cases:

• Why the worker must be present during the times they’re sleeping. Is it a regulatory or contractual requirement to have someone there at those times?
• The extent to which the worker’s activities are restricted by their having to be there and at their employer’s disposal. What happens if the worker goes off-site; would they be disciplined?
• How much responsibility the worker takes on. Is it, for instance, to be on-site in order to help deal with an emergency, or is it to personally care for a disabled person in their home (in which case there may be a greater level of personal responsibility involved in the duties)?
• How much responsibility the worker holds in the case of an emergency. Are they the person who takes the decision to act, or are they assisting another worker whose responsibility it is to intervene?

None of these factors is, by itself, conclusive. This calls for an examination of the facts and an overall assessment of whether being at work means ‘working’.