In this month’s First Tuesday Q&A, Kevin Slattery, Associate in A&L Goodbody’s Employment Practice Group, provides some insights into the law relating to on-call working.

1. What is an on-call working arrangement?

There is no legal definition of on-call working under Irish employment law.

However, being on-call is generally understood to mean time where an individual is not working but is required by their employer to be available to perform work or attend a place of work within a prescribed time - often at short notice. It is a relatively common working arrangement for doctors, emergency staff, IT support and maintenance professionals.

The conditions and restrictions applicable to the on-call arrangement are set by the employer. However, setting significant restrictions on an employee during the period which they are required to be "on-call" may lead to working time compliance issues or payment obligations for the employer.

2. Is time spent on-call considered to be working time for the purposes of the Organisation of Working Time Act 1997?

Working time is regarded as time spent by an employee (a) at his or her place of work or at the employer's disposal, and (b) carrying on or performing the duties of his or her work.

The Irish courts have followed European jurisprudence which generally states that time spent on-call at the workplace or a place determined by the employer will be regarded as working time. However, if the employee must simply be at their employer's disposal to ensure that it is possible to contact him/her while on-call or on stand-by, this will generally not be regarded as working time

The greater the restrictions imposed on an employee who is on-call (but not actively working), the more likely it is that this period will be regarded as working time. This is clear from a number of the European cases:

• In Ville de Nivelles v Rudy Matzak, a volunteer firefighter was predominantly on stand-by or on-call with a turnaround time of 8 minutes. The employee also had to be physically present in a place determined by his employer. It was held that the obligation to remain physically present at the place determined by the employer and the geographical and temporal limitations placed on the employee due to the 8 minute turnaround time significantly limited the employee's opportunity to engage in other activities while on-call and therefore must be regarded as working time.

• In DJ v Radiotelevizija Slovenija and RJ v Stadt Offenbach am Main , the CJEU held that a period of on-call time will be ‘working time’ where restrictions placed on the worker ‘objectively and very significantly’ affect that worker’s ability freely to manage the time during which their services is not required and to pursue their own hobbies and interests. It held that only the constraints that are imposed on the worker by the law of the Member State concerned, by a collective agreement or by the employer are relevant; organisational difficulties that a period of on-call time may generate for the worker, which are the consequence of ‘natural factors or of his or her own free choice’, may not be taken into account

The CJEU also set out various factors that will be relevant when assessing whether the constraints imposed on a worker during stand-by are so significant. It held that it will be relevant to consider the required response time during stand-by. If the worker is allowed a reasonable time to resume his or her professional activities, such that he or she may plan his or her personal and social activities, then that period will not, constitute ‘working time'. Conversely, if the worker is required to return to work within a few minutes, that period must, in principle, be regarded as ‘working time’, since in that case the worker is, in practice, strongly dissuaded from planning any kind of recreational activity, even of a short duration.

• Finally and most recently in MG v Dublin City Council, C-214/20, the CJEU held that on-call time during which a volunteer firefighter was requested to reach his station within 10 minutes did not constitute working time as the constraints imposed were “not of such a nature as to constrain objectively and very significantly the ability that he or she has freely to manage, during the said period, the time during which his or her services as a retained firefighter are not required". In particular, the CJEU took account of the fact that the consequence of not reaching the station within that time period "is simply that he or she receives no remuneration". Interestingly and as an aside the CJEU noted that even where on-call time was not considered working time, the on-call period should not be "so long or so frequent that they constitute a risk to the safety or health of workers".

Where the constraints imposed are so significant such that it results in on-call time being deemed as working time, it could affect the employer's compliance with maximum working hour limits and its obligation to provide rest breaks to the employee.

3. What working time limits and rest periods apply to employees who are on-call?

Generally, unless the on-call employee performs work which falls within a category prescribed by the Organisation of Working Time (General Exemptions) Regulations, 1998 (S.I. No. 21 of 1998) they are entitled to the same rest period entitlements as any other employee.

Thus, it is important for employers to monitor the frequency with which an employee is called upon to actively work during their on-call schedule.

For example, on-call employees:

• Are entitled to a minimum daily rest period of 11 consecutive hours in every 24 hour period.

Therefore there should be a gap of 11 hours between the end of the employee's last normal working day and the start of any active work during the on-call period. This effectively means that having completed a day’s work, an employee cannot report back to work until 11 consecutive hours have elapsed.

• Are entitled to 24 hours' consecutive rest in each seven day period.

However, this can be averaged over 14 days i.e. if the employee does not get a 24 hour rest period one week, can provide two 24 hour rest periods to the employee within the following 7 days and will still be in compliance.

• Must not work more than an average 48 hours per week (averaged over a four month period).

This includes hours actively worked while the employee is on-call.  It does not however include time where the employee is on-call and required to be available, unless the constraints imposed by the employer on the employee during this time ‘objectively and very significantly’ affect the employee's ability freely to manage their time (see question 2, above)

 4. Are employees required to be paid for on call time?

Employers have a degree of flexibility in how they choose to pay employees while on-call provided that at no point – taking account of how much time the employee spent actively working while on-call - their hourly rate of pay falls below the statutory minimum wage per hour (currently €10.10 per hour).

Whether an entitlement to payment arises during active or inactive on-call time depends on terms of the employee's contract and/or an on-call or stand-by policy implemented by the employer.

In practice, employers tend to pay a weekly/monthly allowance for inactive on-call time and an hourly overtime rate for active on-call time.

In addition, if an employee is required work while on call on a Sunday they may be entitled to a premium payment unless the employees' rate of pay, as set out in their contract of employment, includes specific provision for Sunday work. In the absence of such provision, employees are generally entitled to a premium payment/allowance for Sunday working or paid time off in lieu which must be reasonable having regard to all the circumstances, or a combination of these.

5. What should be in an on-call policy?

A good on-call policy should provide for the following:

• Define what is considered to be on-call;
• Detail clearly any requirements/restrictions associated with on-call time e.g be available to respond within a certain period of time, refrain from alcohol during on-call time. The restrictions should be as limited as practicable to avoid the on-call time constituting "working time";
• Set out the payment arrangements;
• Prescribe how on call work will be scheduled;
• Detail how active on-call time is recorded; and
• Confirm expectations around the taking of rest breaks.