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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44880
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I wish to ask if my work are correct in not paying me

Customer Question

I wish to ask if my work are correct in not paying me for doing on call duties this on call time can be up to 55 hours which is on top of my normal working week of 42.5 hours. In my contract of employment they make the statement of while on call duties I must be located in an appropriate place and be able to fulfil the requirements of the emergency out of hours on call service when required. I personally see this statement as restricting me from pursuing leisure activities for example swimming as I would not be able to have my laptop and phone easily accessible under this example. I also have not 'opted out' of the working time directive of 48 hours and in my normal working week. I would do more than 48 hours before any additional work 'on call' time. I want to know if they are in breach of working time directive, is my on call duties classed as working time as Ii can not pursue leisure activities also would they be breaking the law for not paying the minimum wage while 'on call' if classed as working time I am on a salary for my contracted hours of 42.5 hours. I know working time is based on an average over a 17 week period and as such I am given any time back to me in lieu of hours worked, however i have never been given back any such hours in lieu. If the hours worked do indeed include the time 'on call' then my hours worked are hugely over working time regulations.
Could you please advise on the above and how would the best approach with this before having to take the route of placing a grievance, and also what should I be claiming back from the Employer
Many thanks
Kerrie
Submitted: 6 months ago.
Category: Employment Law
Customer: replied 6 months ago.
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Customer: replied 6 months ago.
Have you seen my question as it states resolved but i have got nothing back
Expert:  Ben Jones replied 6 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. On call time has been the subject of ongoing debates in the legal field and it is still a rather complex area. This has gone as far as the European Court of Justice and the most relevant decisions stated that "on-call" time constitutes working time if the employee is required to be in the workplace rather than at home, even if the worker is asleep (at the workplace) for some or all of that time. In simple terms, the fact that the workers were required to be in the workplace and ready for work indicated that they were to be regarded as carrying out their duties. In subsequent case law the key decision was in the case of MacCartney which decided that on call time would be working time if the worker was at a place determined by the employer. I would cast doubt that this as the case here, unless the ‘appropriate place’ you mentioned was a designated place by the employer. Whilst you may be restricted from doing certain activities, like swimming, these would be somewhat limited restrictions and overall you have the choice of where you will be during the on call time and as such it would not be regarded as a place determined by the employer (this would be if you had to be at a specific place, such as on the employer’s premises, or other specific place nominated by them). So on the assumption that on call time is not working time here, it would not be included in the calculation of working hours or pay. However, if you still work more than 48 hours in any rolling 17 week reference period the employer would be in breach of the WTR. You have the right to request that your hours are kept below the legal limit and can request that the employer does so. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 6 months ago.
Thanks for your reply, i am still somewhat confused as to my contract states that i must be in a place where i can still conduct my duties, as such this means i am being restricted of many leisure activities and realistically indicates at home without as much naming a place. If i was to travel or be away somewhere and have the on call phone 100 miles away for example and an emergency call came that i had to attend i would then be failing to meet the job criteria of having the on call and also if i was to go out for a good jolly up at the pub with friends and family and consequently ended up making a bad decision due to the nature of my work with vulnerable adults then this would lead to a possible disciplinary - as such this must mean i was working as i would not get a disciplinary if i was out and drinking and not on call as this would be solely MY leisure time uninterrupted. I was in the belief this may have been your kind of response you would give, but following speaking to acas the rules were that it should not interfere with any leisure activities and as i have explained you are really home based once you have the on call as this is truly the only way you can be proactive and work the role as it should be.Kerrie
Expert:  Ben Jones replied 6 months ago.
Even if you are required to be at hoe it would not be working time, it has to be a place away from home which is designated by the employer. This is not just about leisure time, it is not what defined whether you are in working time or not, sadly there will be times when your leisure activities will be affected but it would still not amount to working time. What I am saying is that legally working time is not defined by whether your leisure activities are affected or not
Customer: replied 6 months ago.
Previously up until 6 months ago they specifically employed someone to do the on call and as such they was paid, and this surely must be work otherwise why would you pay someone for 'not working'? Since then it has become our role to do with no pay, yet they are paid by the NHS to have this service of 'on call' to be running? They invoice to the hospital under our names yet we are not getting paid how is this correct also ?Kerrie
Expert:  Ben Jones replied 6 months ago.
Would you have done a job which would have paid you nothing, even if technically it was not working time? So it is entirely plausible that the employer would have paid that person to do the job as an incentive, rather than because they were legally required to. Whilst I know what answer you would want me to give you, all I can give you is the law which is based on binding case law and unfortunately that is what defines your rights in this situation
Customer: replied 6 months ago.
i am a little lost now, the individual was not employed as an incentive she was only responsible for the on call only and was salaried to do so.
Expert:  Ben Jones replied 6 months ago.
ok what I am trying to say is that it does not matter if someone else was paid to do similar work, that does not determine whether future workers should be paid too. What I meant is that an employer can decide to pay someone for that type of work if they wanted to - it is at their discretion to do so, in the same way that an employer can pay a volunteer who may only be there to volunteer their time for free. But if they do not meant to pay for such work then it comes down to the legal position and whether it amounts to working time and based on current law and case laws, it is unlikely that it would. Does this clarify?
Expert:  Ben Jones replied 6 months ago.
Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.
Expert:  Ben Jones replied 6 months ago.
Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

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