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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44941
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I am employed as a care supervisor contracted to 40 hours have

Customer Question

I am employed as a care supervisor contracted to 40 hours have not opted out of the 48hr /wk contract. We are on call 24/7, we have constane text/call alerts sometimes 30 a day that we have to respond to within 3 minuites by call or text and chase if no response from the worker thses are between 7am-10pm 7 days a week, we are allowed the phone to be diverted between 9am-5.30pm 1 day a week , during our 'day off' we are still contacted by the office via email or text most days, my wwek alwya sgoes over 40 hrs sometimes as much as 60+ hrs, this does not inc any time spent covering the on call, we are restricted 24/7 as we have to be available to respond to an emergency or cover calls at any time, meaning that we can not consume alcohol, or go to far from away from our home, ie I couldn't really decide to take my kids away day out the area incase I need to cover a call due to sickness or an emergency came up, I am expected to cover calls at any time if no one else can from 7am-10pm mon-sun, it has come to the point where I have self certified and will req my doctor signs me off, I am so depressed, tired, run down and my life and family have been severely affected, may I add that I do not get time in leiu nor paid time, I have tried discussing with my commercial manager twice to no avail, I can not afford to walk out but can not carry on, and don't think it is right. If a care call is missed because I don't get paid or because I have worked over 48hours I will be brought in disciplinary and vulnerable clients are left, what choice do I have. Please help
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Ben Jones : , my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
JACUSTOMER-axhfpm06- :

I have worked there since 1st Sept 2014

Ben Jones :

sorry I was offline by the time you had replied last night. As you do not have 2 years’ continuous service, you can only really challenge this on certain limited grounds, which in your case would relate to the Working Time Regulations. You cannot just rely on general unfairness because you would require 2 years’ service .

As far as the working time issue goes, you would need to show that your time spent working actually goes above the average you are allowed to do by law (48 hours on average, assuming you have not opted out).

The issue is that time spent on call has been the subject of continuous debates a decade and whilst it has gone to court on a number of occasions, there is still no clear answer that would cover all examples of whether on call time actually amounts to working time.

The summary of these cases says that on call time will only amount to working time and count towards your limits if it is conducted at a place designated by your employer. So if you are required to spend that time on company premises or within a certain distance of the workplace then it can amount to working time. If you have no such restrictions, spend it at home, then even if it is restrictive because you would be required to always be available, it would not form part of your total working time.

Even if this did amount to working time and took you over your limits you cannot just take formal action just yet and first you would need to raise this with the employer as a grievance and tell them what your concerns are, trying to get them to make changes to assist you, but if that does not happen then you can only pursue this by resigning and making a claim dismissal because you were forced to work more than the legal average.

Similarly if you are experiencing increasing levels of stress a good starting point is to look at The Health and Safety at Work Act 1974 and related statutory instruments, which impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. This includes a duty to undertake risk assessments and manage activities to reduce the incidence of stress at work. In addition, under common law an employer owes a duty of care towards its employees, the breach of which can amount to negligence.

So you can use the above information to try and take the matter further, through a grievance first, before considering your options next.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Ben Jones :

, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? I just need to know whether to close the question or not? Thanks

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