'On-Call' / Out Of Hours

[ShaneG2009]

Hi

 

I am writing this question on behalf of my better half.

 

She works for a telecommunications company and as part of her employment she is required to take possession of the works out of hours mobile phone and laptop to provide support for issues that arise out of normal working hours. Her boss says that she is only entitled to claim money for the time actually spent on the phone dealing with a fault.

 

I have read elsewhere that if you are on call at the beckon call of the business you are classed as working - is this correct? Does my girlfriend have rights to claim for money at her normal hourly rate for any time when she is classed as 'on call' regardless if the phone / laptop is being used?

 

Thanks in advance

 

Shane

[elche]

Hi Shane

 

The issue of on call time and whether it should be paid has received lots of judicial attention - there is lots of guidance on the web if you google 'on call time and the national minimum wage' this may well be where you have read that being on call = working time.

 

see for example guidance here - http://www.businesslink.gov.uk/bdotg/action/detail?itemId=1081685821&type=RESOURCES

 

Certainly there have been cases where on-call time has = working time for the purposes of the NMW (BNA v Inland Revenue 2002) http://www.thompsons.law.co.uk/ltext/l1250005.htm BUT exclusions do exist whch could apply if the worker spends the om-call time at home - i will check this point further

 

I suppose by analogy this potentially supports an argument that it is 'working time' in respect of contractual remuneration??

 

How much is she paid? How does the contract say her wages are worked out e.g. per hour rate, annual salary etc?

 

Her case will probably be weaker the longer she has been doing this (assuming NMW compliance), because she has in effect 'accepted' this.

 

How long has she been doing this?

 

Che

[elche]

see also recent eat case - http://www.employmentcasesupdate.co.uk/site.aspx?i=ed6937

 

che

[ShaneG2009]

Hi Elche

 

Thanks so much for your posts - really, really helpful.

 

She is on an annual salary contract and is paid approx £18k which is paid on 25th day of each month in equal payments. Hope this bit assists?

 

She has been in the job approximately 2 years and touch wood is on the verge of moving (interview tomorrow) however every worker in the office at one point or another has complained about having to do this work without being paid properly. The company in question have lost a lot of staff recently and have not replaced them so it makes the 'on-call' responsibility come around much quicker.

 

Take this weekend for example; 9am and one of her customers develops a serious fault on a line and despite not being on the phone / laptop all weekend my GF was monitoring the status of the repair and had to keep in regular contact with the customer throughout so it has once again taken over her weekend. According to her boss she is only entitled to claim money for the time spent on the phone and most of the time this is quite minimal however she is not free to do anything socially because of the nature of her work means she needs to be near a PC when an out of hours telephone call is received so she can log the fault etc.

 

If she wanted to escalate this dispute what process would she have to adopt? I have thought about writing a letter on her behalf but i wanted to check that i was on the right track before doing so.

 

I appreciate your help.

 

Shane

[elche]

If she wanted to escalate this dispute what process would she have to adopt? I have thought about writing a letter on her behalf but i wanted to check that i was on the right track before doing so.

 

Hi Shane,

 

There are definitely 2 potential issues.

 

1) I don't think that it would be viewed as 'working time' for NMW regs as she is at home - it will probably just be time actually spent on the phone - BUT -

 

2) I think all the time spent on call might = working time for the purposes of the WTR 1998. Thus not only is she potentially not receiving sufficient break between shifts she may also be exceeding the 48 hour week.

 

If she wanted to escalate this and make it formal then he first step would be to draft a grievance letter. You may well find that there is a grievance procedure outlined in the employee handbook.

 

Basically you would highlight how the nature of this on-call work has changed i.e. increased, that you do not feel it is fairly remunerated and also want to know do the company agree that this time is 'working time' for the purposes of the WTR 1998?

 

Obvioulsy you should get a grievance meeting then to discuss. Of course once you make a complaint formal at work itcan sour relations.

 

Can they group together i.e. all employees affected by the on-call time, and complain?

 

Che

[dpick]

Hi I am now retired but when working I would for 1 week (7 nights) in every 8 weeks be on call from 4am till 9am to cover for a company that did their accounts and computer backup during these hours. The company I worked for paid £25 for each night on call (just for being on call for the company being covered) and if a problem occurred then they paid the £25 plus normal hourly rate from time of call to till 9am.

 

The reason they paid the £25 was they reasoned that I would not be able to drink on the evening prior to being on call as it was possible that I may have had to drive the 100 odd miles to the company involved to fix a problem if not able to fix the problem online.

 

dpick