Is a worker working when they're on-call but not...working?
Is a worker working when they’re on-call but not... working?
Mr Shannon was an on-call night care assistant. It meant that he had to be present in the care home (which, significantly, was also his home) throughout the night to help the designated night care assistant. In reality, help was rarely needed.
Did all those nighttime hours constitute working hours, even though he slept during them? The tribunal held that he was only working when he was called on to help the care worker. As he was already being paid the National Minimum Wage for those times, he lost this aspect of his claim. The Employment Appeal Tribunal upheld that decision.
It’s important to remember, then, that just because a worker is at their place of work, it doesn’t mean that they are ‘working’. The usual rule is that if someone is available at or near work to do salaried work and is required to be available for work, then those are working hours. But, as this case has highlighted, it’s different where the worker is spending time at home. Then they’ll only be working when they are “awake for the purpose of working”.
It can be a difficult legal area to navigate and, as it’s so fact-specific, there’s plenty of scope for argument.
