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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6307
Experience:  15 years experience of advising on employment law matters
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My question is regarding contractual obligation of on-call

Resolved Question:

My question is regarding contractual obligation of on-call duties. Primarily, am I obligated to perform work out of hours when it is not stated in my contract?
I have raised this with my employer and they have stated that in my interview for this position, it was stated that on-call was a requirement. They believe that stating this in the interview is contractually binding as a verbal contract. Keep in mind that no express terms, SLA's or timescales were presented in the interview regarding on-call work.
I do not get paid for any time when on-call, nor is it stated in my written contract. Am I obligated to perform these duties, or can I legally refuse to perform them without risk of dismissal?
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you today. How long have you worked for your employer and have you always been required to do on call work?

Customer:

Hi Jenny, I've worked for this company for 6 months. On-call work was mentioned in the interview but is entirely missing from my contract.

Customer:

I started doing work on-call a few weeks into my employment, however I was surprised to find that it was entirely unpaid, and seemingly (though this wasn't officially stated) required me to be responsive throughout the night until the next morning.

taratill :

Is everyone required to do the on call?

Customer:

I work in a team of 3 people. 2 of us our administrators, who work on-call on a rota of one week on, one week off. The third is the manager, who is not part of the rota.

taratill :

are you at home when you are on call?

Customer:

Yes, we are at home when on-call and required to respond at all hours (though again, this wasn't ever stated)

taratill :

It is unfortunate that this is not set out in your contract of employment. You should note however that terms can be implied through being verbally stated (as they have told you), and through custom and practice. This means that you can be contractually obliged to do this even though it is not in your contract.

taratill :

You can, of course, refuse to do the on call but this would risk dismissal.

Customer:

Are terms valid if they're verbally stated in an interview? They've never formally given terms whilst I was employed here. Moreover, am I not entitled to be paid for the time I'm working in on-call when addressing issues?

taratill :

Terms do not need to be written although it would be better if they were. The main issue for you is that you have less than 2 years service. An employer can terminate for any reason so long as it does not discriminate against you contrary to the Equality Act 2010. This means if you raise a complaint they could dismiss you and you would have no redress. This is clearly not fair but it is the position in UK law at the moment that people with less than 2 years service are not protected well.

taratill :

You should be paid for periods that you work. If you are not then employer is in breach of the National Minimum Wage.

Customer:

so at the very least, when I am on-call and addressing problems that occur regularly at 3am to 5am, naturally waking me up - I should be paid for these occurances by law?

Customer:

Also as convoluted as it is, are there any guidelines regarding the fact that I'm expected to wake up at unsociable hours, and then also be expected to start work at 9am, meaning I wouldn't have had any decent rest?

taratill :

Please bear with me while I prepare a full answer.

Customer:

ok, thanks

Customer:

Are you still with me? :)

taratill :

Yes sorry I have been travelling and lost connection for a while.

Customer:

ok, no problem. just checking!

taratill :

Hi time working on call counts as Working Time, not the time that you are not working but on call. You should be paid in respect of the time that you are actually working. The guidance under the Working Time Regulations requires certain daily an weekly rest. Daily rest is 11 hours per day. Therefore your employer may be in breach of the Working Time Regulations if you have a period of active on call and are required to attend work the next morning. You are entitled to raise a grievance if this regularly happens.

taratill :

If you have any further questions please do ask. You should note that there may be a delay in me getting back to you as I am travelling and keep going in and out of internet connection.

Customer:

okay, that clears things up a bit, my only final question really is what is regarded as daily rest, is that simply time that is uninterrupted rest or simply a cumulative figure of time that you aren't working?

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