Working time directive question

C_Mababejive

scheming_gypsy wrote: »

an immediate response for on call is just answering the phone (or at least in every on call scenario, I've been involved in), so you make sure your work phone is available. Once you've answered the phone you need to work within the time scales for the resolution

But in this case,the immediate response might be to be on site within an hour which again,severely restricts freedom of movement.

buggy_boy

hcb42 wrote: »

[/LIST]ah so that's ok for hotels then, every one I have worked in runs late /early shifts on reception, finishing say 1115pm and back in for 7am.

OP, are your employer still saying they will pay you for being on call....if so are you still not better off doing these even with the rest time. ?

We are paid for being oncall yes but its not a huge amount and a call out that is only 3hrs long minus the 7.5hr day would leave us about even which does raise the question why bother.

We have a lot of older guys that dont like doing oncall anyway now, I can see a rush to the doctors to get them signed off for not doing oncall if it is no longer financially beneficial.

Oncall for us is having to answer the phone pretty much immediately not be too far from home say 30mins, interestingly though from the above post, we have to basically stay out until the job is done, even if as in the past we say we are tired we are told there is nobody available to relieve us until the next day staff come online so we can often work 24hrs straight, I can see if this rule comes in that we will be more stringent and stop working at say midnight so we can still come in the next day so we dont get our pay docked. I really dont think the employer has thought through the implications.

chainsaw

zagfles,,, you said "To define time at home watching telly or sleeping as "working" is completely stupid"

I understand where you are coming from but I think it is only because you have not had reason to think about the situation. If someone is sat at home (watching TV or sleeping) instead of being out at a football match, fishing, shopping or whatever it is that takes their fancy then in what sense are they not working?

If they cannot have a few drinks in case they are called out, if they have to arrange/pay for child care in case they are called out why are they not working? They have had to put them-self at the disposal of their employer.

If you are on call out next week and this stops you from visiting friends and family locally why would you consider yourself not at work? Supposing all your family went to your sisters for Christmas day and you had to stay home on call alone. Why is that not work?

What is the difference between sitting at home waiting for work and sitting at work doing nothing during a quiet period?

Do you think if you went to court with a solicitor and waited all day for your case to be called but it was not the solicitor would not charge you because he was not working?

Call out has been abused by many employers especially in the care sector where carers on minimum wage working part time hours, say 15 hrs were required to remain on site for another 60 / 70 hours a week for no extra pay. Other employers just keep reducing staff levels whilst increasing callout hours for those that remain.

If call out is not work then what is the legal maximum number of hours an employer can put an employee on call out duty? 365 days a year?

The fact is that employment tribunals do rule that people at home asleep in bed or watching tele etc are in fact working. They key to the decisions is if the employee is allowed to leave his house.

For example.If he is allowed to go to the football match whilst on call then he is not working. If he is forced to stay at home and watch the football match on TV he is at work.

I will leave you to think about that lot


scheming_gypsy

I did note that you said "in my experience" I just wanted to point out to everyone that there are jobs that need an immediate response for example engineers who work for utility company's like gas and electric, If you smell gas and call the emergency number out of hours there is a good chance the engineer who comes to your house has been sat at home unable to leave his house just waiting for your call. Such jobs need an immediate response, he is not allowed to finish his shopping or see the end of the match because the house in question may have blown up by the time he finishes what he is doing drives home to collect his van and makes his way to the job always assuming nothing happens to him whilst he travels to collect his company van, say a punture to his car. I imagine retained firemen work in a similar way, not sure about lifeboat men as they are often volunteers, I am sure some doctors will work like this and as I mentioned above care workers do as well. There will be lots of other people.

I have seen your government link many times. There are exceptions and everyone puts their own spin on them. What people need to understand is that the government does not approve of the European WTD and WTR but have had to implement them so they have a completely different agenda to what you think.

What actually counts is not what the government say on their websites but what happens in the courts when the law is tested. The case law. The courts regularly agree with what I am saying or should I say I agree with them because it's only as a result of my own confusion that I have taken the trouble to study the subject including reading both the WTD, WTR , many court cases, HR, HSE, Trade Union, BIS, .gov, ACAS etc publications, I try to be as informed as I can on this subject.


hcb42

"finishing say 1115pm and back in for 7am"

You are entitled to an 11 hour continuous break in 24hrs between shifts. If you are not getting it the hotel is breaking the law. By not taking it you are probably breaking the law. The government does not enforce the law because it does not like it, the courts do enforce the law when people go to them but most people don't

In my experience shift patterns are usually poorly planned by managers to busy or lazy to do them properly. Often a little care can actually give people the rest they are entitled to if not all the time certainly more often than they get it



C_Mababejive

"But in this case,the immediate response might be to be on site within an hour"

Or even sooner. Not much point a retained fireman turning up an hour after you call him etc


buggy_boy

If you are allowed to be 30 mins away from home then I would say you are probably not working during call out hours unless you are actually at work.

I don't think you have to stay out working for 24 hrs just because there is no one to take over from you. The HSE say that you twice as likely to have an accident after you have worked 12 hrs compared to 8 hrs and three times as likely after 16 hrs. What if you fall asleep at the wheel whilst working or driving home. What would your defense be in court? Sorry I killed the children at the bus stop because there was no one to take over the job I was doing so I was tired.

If your job is that important the company should ensure that there is enough cover that someone could take over from you in such circumstances but that might involve doubling call out and the employees may not like that. It may involve extra costs and the company may not like that so the situation will just be brushed under the carpet until someone dies

zagfles

buggy_boy wrote: »

We are paid for being oncall yes but its not a huge amount and a call out that is only 3hrs long minus the 7.5hr day would leave us about even which does raise the question why bother.

We have a lot of older guys that dont like doing oncall anyway now, I can see a rush to the doctors to get them signed off for not doing oncall if it is no longer financially beneficial.

Oncall for us is having to answer the phone pretty much immediately not be too far from home say 30mins, interestingly though from the above post, we have to basically stay out until the job is done, even if as in the past we say we are tired we are told there is nobody available to relieve us until the next day staff come online so we can often work 24hrs straight, I can see if this rule comes in that we will be more stringent and stop working at say midnight so we can still come in the next day so we dont get our pay docked. I really dont think the employer has thought through the implications.

If this happens often it sounds like you'd be better with a shift system eg a shift starting late afternoon/early eveing finishing about midnight then oncall till 8-9am when the dayshift take over. That way you'll never work 24 hours on the trot, and you won't get your pay docked for sleeping in the day because you aren't working in the day. And if not called you get the day off to do shopping etc when it's quiet. Could you work it at home? We used to do similar and it works much better where the callout rate is high.

zagfles

chainsaw wrote: »

zagfles,,, you said "To define time at home watching telly or sleeping as "working" is completely stupid"

I understand where you are coming from but I think it is only because you have not had reason to think about the situation.

Not had reason to think about it?? I've worked in a job that requires 24 hour cover for over 20 years. I've worked all sorts of shift/oncall rotas in that time. I've had plenty of reason to think about it.

It sounds like you haven't thought about it...

If someone is sat at home (watching TV or sleeping) instead of being out at a football match, fishing, shopping or whatever it is that takes their fancy then in what sense are they not working?

Err, they aren't doing any work.

If they cannot have a few drinks in case they are called out, if they have to arrange/pay for child care in case they are called out why are they not working? They have had to put them-self at the disposal of their employer.

If you are on call out next week and this stops you from visiting friends and family locally why would you consider yourself not at work? Supposing all your family went to your sisters for Christmas day and you had to stay home on call alone. Why is that not work?

The point you are missing is that if all the above is "work", then under the WTD you wouldn't be able to "work" for 24 hours solid. You have to have your 11 hours off.

That means (in our case) we would need 4 people on call to cover Christmas day, in 12 hours shifts, and 4 people to cover every weekend, instead of the 2 we have now. That means twice as many ruined weekends, twice as many ruined Christmases. I would need to be available every other weekend, for part of it, instead of just 1 in 4.

It is mainly the staff at our place who wanted oncall time to not be defined as working, for this reason. Our callout is light enough for this never to have been a problem with working (actually working) excessive hours.

Personally I would refuse to do callout if nanny state insisted I had to do in 12 hours chunks rather than get it all over in one go.

What is the difference between sitting at home waiting for work and sitting at work doing nothing during a quiet period?

Do you think if you went to court with a solicitor and waited all day for your case to be called but it was not the solicitor would not charge you because he was not working?

Call out has been abused by many employers especially in the care sector where carers on minimum wage working part time hours, say 15 hrs were required to remain on site for another 60 / 70 hours a week for no extra pay. Other employers just keep reducing staff levels whilst increasing callout hours for those that remain.

If call out is not work then what is the legal maximum number of hours an employer can put an employee on call out duty? 365 days a year?

Who said "callout" is not work? You seem to be confusing "oncall" (ie being available but not working), and "callout" (ie getting called and actually working).

And our management are effectively "oncall" 365 days a year, for escalation purposes.

The fact is that employment tribunals do rule that people at home asleep in bed or watching tele etc are in fact working. They key to the decisions is if the employee is allowed to leave his house.

We can leave the house, as I said. No question about that. We are supposed to be within 20 mins.

For example.If he is allowed to go to the football match whilst on call then he is not working. If he is forced to stay at home and watch the football match on TV he is at work.

We probably couldn't go to a football match because it'd take too long to get out if we were called. Besides there's always the possibility of getting called before the match starts and so not being able to make it, so wouldn't be worth buying a ticket.

Though colleagues do have season tickets and they usually try to get someone else to cover a few hours while they're at the match. We are always swapping oncall time between ourselves when we have something on.

I will leave you to think about that lot

I've had over 20 years to think about it, thanks.

chainsaw

zagfles

I too have had over 20 years working shifts and call out but it was only when I became a salaried worker and my company thought I should work call out for nothing (long story) that I took the trouble to research the truth about the WTR.

You may be happy working the way you do but my posts are not specifically for you or even buggy-boy. I made them to inform people about the WTR / WTD. what you buggy-boy or anybody else does with that information is up to them. I only pass it on as I know how hard it was for me to find it.

I won't answer all your points, just a few

You are right under the working time regulations (and common sense) you are not allowed to work a 24 hrs solid and you do have to have 11 hrs off. However just like parking on yellow lines someone has to enforce the rule and if they don't...

I know its hard to get your head around being at home is working but it is (although in your case it may not be as you are allowed to leave for a reasonable distance/time) Did you not see my examples of people who are not allowed to leave their house at all?

Let me be more specfic with my examples

Care worker entitled to be woken up so they can have a rest

http://www.personneltoday.com/articles/2008/10/20/48016/sleeping-care-worker-should-have-been-woken-for-rest-breaks.html

Hotel worker entitled to be paid when he is asleep

http://www.businessmadesimple.co.uk/ArticleReview/tabid/79/ModID/466/ItemID/65098/Default.aspx

Night sleeper entitled to minimum wage

http://www.astonbond.co.uk/quarterly_news/winter_08_09/employ_nightsleeper.html

Night nurses bank minimum wage (read last paragraph)

http://www.thompsons.law.co.uk/ltext/l1160001.htm

One of the most important cases is MacCartney case. Employers would have you believe that you are only entitled to be paid / have 11 hours rest if you at on call from their premises. The MacCartney case clears this up saying that it is not important where you are on call from, work or at home. If you are required to stay in a specific location by your employer and respond immediately then you are working.


You say I am confusing call out and on call, probably as these terms seem to be interchangeable in many companies and mean different things. My company calls it stand by. It does not actually matter what you call it, only what you are actually required to do.

Just reading your post it seems that you actually have a choice to do call out / on call / stand by etc or not. If you don't like it then you can stop. My information is more for people who do not have a choice and who are bullied into working excessive hours possibly illegally.

Anyone on "call out" 1 week in 4 as someone said on here is severely restricting their social life 13 weeks a year when you cannot book a holiday, drink or attend other social functions. Why would this not be work? I heard of a care worker who was only allowed to leave her premises one day a week!

chainsaw

buggy_boy wrote: »

Ok so here is my situation.


I get paid for being oncall and then paid extra for getting called out. because we have to work all day then often when oncall all evening into the night, if we work past 11pm aka more than 13hrs we are entitled to 11hrs rest period.

The law says you have to have your 11 hr continuous rest break within a 24 hour work period so lets say you start work at 9am and have half an hour for lunch then you should be telling your employer at 10.30 pm you can no longer work

However my employer is now saying they dont have to pay me if I choose to take my 11hrs stand down for the time it interferes with my normal working day so in the example above I get home at 3am after working 18hrs I go on stand down until 2pm, the company is saying they want to then not pay me from 9am until 2pm.

He wants his cake and eat it.

If your employer insists on not paying your sleep in time. Make him aware that you are entitled to an 11 hour continuous break every 24hr s and that you don't mind breaking the law to help out a good firm but not if its going to cost you money, time and be potentially dangerous so its his choice.

Then it will be his choice, (unless you take that choice away from him) he can pay you to sleep during the day after your call or loose you as a call out man after 10.30pm. Financially you will be no worse off as he is deducting your sleep time pay anyway.

Are they allowed to do that? There is nothing in my contract but the company has always paid it for decades.

People do things all the time that they are not allowed to either due to ignorance or because they can get away with it. My guess is your boss if he is half decent will see the logic of your argument eventually without you having to mention the WTR but just in case you should start swotting up. At the very least the WTR could be used as a negotiating tool

I cant seem to find any information for my particular circumstance.

As you can see on this message board new ideas, even when they are over a decade old are hard to sell an a certain amount of pre selling and educating may be required of your boss.. If you do have to challnege your boss do some ground work first, ease the idea into his mind.

If you are working 1 in 4 call out, 13 weeks of your life per year hanging around (some would say working) unable to go on holiday visit friends etc the least your boss can do is pay you during your rest period as he has been doing for a long time.

zagfles is right a shift system, perhaps even one that does not include call out at all would better suit your job however as zagfles and your employer see it that might involve you being paid to do nothing!! on late shifts.

I say even if you were doing nothing you are working and that managers use call out / on call / stand by as a means of having you in work and not paying you because there is not much to do. An now your manager wants to take up even more of your time by not paying you to sleep in after a 24 hour working day!!

You are only sleeping in because he worked you so hard in the first place and now he wants to cancel out the money you earned.

THIS IS A PERFECT EXAMPLE OF WHY THE WORKING TIME DIRECTIVE AND THEN THE WORKING TIME REGULATIONS WERE BROUGHT INTO FORCE.

There would have been no point making them law if employers could just ignore them and impose there own rules.

zagfles

chainsaw wrote: »

As you can see on this message board new ideas, even when they are over a decade old are hard to sell an a certain amount of pre selling and educating may be required of your boss.. If you do have to challnege your boss do some ground work first, ease the idea into his mind.

If you are working 1 in 4 call out, 13 weeks of your life per year hanging around (some would say working) unable to go on holiday visit friends etc the least your boss can do is pay you during your rest period as he has been doing for a long time.

But there's no law saying they must pay you. This sort of thing is what happens when employers and employees let nanny state rules dictate how they should work. It creates this sort of situation.

Employee says "WTD says I can have 11 hours off".

Employer says "fine, but you won't get paid".

A situation neither are happy with, suits neither of them, but the jobsworths are happy as no regulation is being infringed.

Rather than coming up with a mutually agreeable solution they are both happy with and then work out how to get around any daft rules it may infringe. That's the way we've always worked, and we have far better working conditions than if we strictly adhered to the WTD.

If, say, I got called at 4am after having finished work at 5pm, under the WTD my employer could expect me in on time at 9am because I've had my 11 hours off. But they don't. I'll be in bed catching up on my sleep and getting paid for it, neither of which are thanks to the WTD. They are thanks to a local agreement which is far better. Similarly as I wrote above if I got a call at 2300-2400 I'm not going to stay off till 11am next day just cos the WTD says I can.

zagfles is right a shift system, perhaps even one that does not include call out at all would better suit your job however as zagfles and your employer see it that might involve you being paid to do nothing!! on late shifts.

Why would the OP be doing nothing? When I worked late shifts there was always non-urgent work to do, admin work, trails to run, testing etc, while waiting for the urgent stuff to come in. Depends on the job of course and there was stuff I couldn't do on late shift - but I didn't just sit around every evening waiting for the phone to ring.

I say even if you were doing nothing you are working and that managers use call out / on call / stand by as a means of having you in work and not paying you because there is not much to do. An now your manager wants to take up even more of your time by not paying you to sleep in after a 24 hour working day!!

You are only sleeping in because he worked you so hard in the first place and now he wants to cancel out the money you earned.

THIS IS A PERFECT EXAMPLE OF WHY THE WORKING TIME DIRECTIVE AND THEN THE WORKING TIME REGULATIONS WERE BROUGHT INTO FORCE.

Err...the WTD doesn't help the OP at all with this problem. It doesn't say he has to be paid for rest periods.

I really would suggest the OP gets together with his colleagues and put forwards alternative proposals to get the hours covered in a way that suits everyone. Perhaps shifts is the answer, perhaps something else is. But the key point is not to simply complain about what management are proposing, instead come up with alternative proposals.

chainsaw

zagfles wrote: »

[/B]
But there's no law saying they must pay you. This sort of thing is what happens when employers and employees let nanny state rules dictate how they should work. It creates this sort of situation.

Employee says "WTD says I can have 11 hours off".

Employer says "fine, but you won't get paid".

A situation neither are happy with, suits neither of them, but the jobsworths are happy as no regulation is being infringed.

Rather than coming up with a mutually agreeable solution they are both happy with and then work out how to get around any daft rules it may infringe. That's the way we've always worked, and we have far better working conditions than if we strictly adhered to the WTD.

If, say, I got called at 4am after having finished work at 5pm, under the WTD my employer could expect me in on time at 9am because I've had my 11 hours off. But they don't. I'll be in bed catching up on my sleep and getting paid for it, neither of which are thanks to the WTD. They are thanks to a local agreement which is far better. Similarly as I wrote above if I got a call at 2300-2400 I'm not going to stay off till 11am next day just cos the WTD says I can.


Why would the OP be doing nothing? When I worked late shifts there was always non-urgent work to do, admin work, trails to run, testing etc, while waiting for the urgent stuff to come in. Depends on the job of course and there was stuff I couldn't do on late shift - but I didn't just sit around every evening waiting for the phone to ring.



Err...the WTD doesn't help the OP at all with this problem. It doesn't say he has to be paid for rest periods.

I really would suggest the OP gets together with his colleagues and put forwards alternative proposals to get the hours covered in a way that suits everyone. Perhaps shifts is the answer, perhaps something else is. But the key point is not to simply complain about what management are proposing, instead come up with alternative proposals.

I know there is no rule saying you have to be paid when you sleep in the next day.



The problem Buggy Boy has is that having been paid for what I am assuming is years for sleeping in the next day his employer no longer wants to pay him. He is no longer the reasonable give and take employer he was and that you say you have. In this situation why would Buggy Boy continue to work more than 13 hours knowing he was now working for nothing because anytime that he needs to rest the next day will now be deducted in money?

Employee says "WTD says I MUST have 11 hours off".

Employer says "fine, but you won't get paid"

Employee says "thats OK I won't need anytime off because I won't be working after 10.30pm"

A situation the employer is not happy with but probably the lesser of the two evils for the employee as he won't be working for nothing, won't be working when he is too tired to work, won't be falling asleep at the wheel when he is driving and will spend more time with his family as well as probably being no worse of financially.
Perhaps faced with this his employer might opt for the status quo?

Now I am not saying Buggy Boy should or should not stick to the letter of the law, that's up to him but hopefully he is better armed with this information to negotiate himself a better deal after all he did come on asking for help and it didn't sound like his boss looking to come up with "a mutually agreeable solution"

The WRD and WTR are not daft rules they are the law of the land and the law of at least 27 European Countries.



Your example "If, say, I got called at 4am after having finished work at 5pm....etc"


was a bit short on detail. When you catch up on your sleep were you starting at 10pm instead of 9pm? I will assume so. So you get paid to sleep for a whole hour. Well if that's your standard type of call out then I am sure you are happy but Buggy Boy is saying he likely to work 18 hours or greater and that he won't get paid any hours at all to sleep in.

Your other 1 hour example " if I got a call at 2300-2400 etc ..... " Well by the letter of the law you would be entitled to take that sleep time but if for whatever reason (good job, well paid, like the boss etc) you choose not to that's OK. The WTD was not introduced to protect people from what I suspect are your unrealistic examples of call out. Its to protect people from working excessive hours.Your examples are not really comparable with Buggy Boys problem.

I wonder what sort of job you do that would require you to be called out in 4am and you could get up get dressed get to the job, do it and then get back home in bed in around an hour, and how often that would happen?

How much sleep time do you think you should have if you were called out at 01.00-02.00 and then again at 04.00 - 05.00? You have only worked two hours.


"Why would the OP be doing nothing? etc........"



I did say might, but if there is always admin to do, even at 4am, great, get rid of call out and just have shifts.




"Err...the WTD doesn't help the OP at all with this problem. It doesn't say he has to be paid for rest periods"


I didn't say it did. Have you ever read the WTD do you realize that actually its the WTR that apply in the UK. Have you read either? Do you know the difference? I have read both many times. If you have read them which I doubt you clearly have not read the case law which I have.
Yes it does help and I did not say the OP / Buggy Boy would get paid for rest periods. It helps because Buggy Boy is saying in simple terms, that if he works 6 hrs on call and wants to take 6hrs off sleeping in the next day because he is tired in the way he has always done in the past his boss will deduct 6 hrs wages and he will have been available / working though the night for nothing.
If after discussion etc he is still forced into that position I have shown him that he can at least refuse to work call out through the night, he won't get paid for the call out he is not doing but then if he needs to sleep he won't be paid for it anyway so he is no worse off. (I would also argue his T&C's have changed and he is being made to take a pay cut.)


Better still if his boss is just telling Buggy Boy whats going to happen being completely intransigent the information I provided will at least give him some bargaining tools which I think is what he was asking for.


Nobody needs people to tell them to talk to management, they need to know what to do when talks break down.
BTW you mentioned the "nanny state" before the nanny state we used to send children up chimneys and down coal mines or work them from dawn till dusk 6 days a week in the mill. If the mine collapsed or you got sucked into the mill machinery, tough there was no compensation, no sick pay, no NHS just the sack and you would probably be thrown out of you mill/mine house assuming you were not dead. People / Employers used to think that was OK as well and they would again if the nanny state disappeared.

You didn't say if you enjoyed reading my links to articles that say you are working if you are at home asleep in bed.

chainsaw

zagfles wrote: »

[/B]
But there's no law saying they must pay you. This sort of thing is what happens when employers and employees let nanny state rules dictate how they should work. It creates this sort of situation.

Employee says "WTD says I can have 11 hours off".

Employer says "fine, but you won't get paid".

A situation neither are happy with, suits neither of them, but the jobsworths are happy as no regulation is being infringed.

Rather than coming up with a mutually agreeable solution they are both happy with and then work out how to get around any daft rules it may infringe. That's the way we've always worked, and we have far better working conditions than if we strictly adhered to the WTD.

If, say, I got called at 4am after having finished work at 5pm, under the WTD my employer could expect me in on time at 9am because I've had my 11 hours off. But they don't. I'll be in bed catching up on my sleep and getting paid for it, neither of which are thanks to the WTD. They are thanks to a local agreement which is far better. Similarly as I wrote above if I got a call at 2300-2400 I'm not going to stay off till 11am next day just cos the WTD says I can.


Why would the OP be doing nothing? When I worked late shifts there was always non-urgent work to do, admin work, trails to run, testing etc, while waiting for the urgent stuff to come in. Depends on the job of course and there was stuff I couldn't do on late shift - but I didn't just sit around every evening waiting for the phone to ring.



Err...the WTD doesn't help the OP at all with this problem. It doesn't say he has to be paid for rest periods.

I really would suggest the OP gets together with his colleagues and put forwards alternative proposals to get the hours covered in a way that suits everyone. Perhaps shifts is the answer, perhaps something else is. But the key point is not to simply complain about what management are proposing, instead come up with alternative proposals.

Sorry about the way I posted my last post its all over the place, I am not used to the QUOTE thing yet as I don't usually use message boards.

I just wanted to make another point about the 11 hour continuous rest break. If someone is actually working a week at a time on call then they need to calculate backwards as well as forwards

Lets say someone works a 09.00 - 17.00 day and call out 00.00 - 03.00 and then come into work at 09.00 (or even 12.00) then during that 24 hr period they will not have had an continuous 11 hr rest..

It might be argued that they had the 11 hr rest before they started work at 09.00 but as the period covered is more than 24hrs that would be wrong
and even that slim argument is lost if you worked similar pattern the day before. It would be possible to work a whole week and never get your legal 11hr continuous rest!!