In all the time I have been writing this column I don’t recall ever having to type “the law is an ass” before. That’s the first time and the reason is because of a case heard by the Employment Appeal Tribunal reported this week.
It concerned a care worker in a residential home who was required to be on call eleven hours a night seven days per week. She was allowed to rent a flat nearby at a subsidised rent so that she could get to the home quickly when required. Her duties also required her to work for eight hours per week during the day. She brought a claim under the Working Time Regulations against her employers alleging that she had not been allowed to take sufficient rest breaks at night, even though she was asleep. In other words, as it has been reported elsewhere, she had to be woken up in order to take her rest break, hence my initial remark. She won her case on appeal, the Employment Tribunal having found against her in the first instance.
However daft the facts of this case might seem, there is a serious point here. She was subject to the Working Time Regulations which require that workers be given eleven hours off in every 24 hour period and 24 hours off in every seven days. Furthermore, she was entitled to a 20 minute rest break every six hours. She had not contracted out of the Regulations and her terms and conditions of work infringed them. The main issue though concerns whether a person on call is deemed to be working – the answer from this case is yes. Although she may have been sleeping at night, she could have been called out at any time and was thus “at work”. From an employer’s point of view it makes sense to get employees to contract out of the Regulations to avoid this type of problem. The law may be an ass but not in this instance.
This article will appear in the “Docklands” and “Peninsula” newspaper week commencing 3rd November.