Can you be working while you are asleep?

2 August 2021
What is On-Call time? The Working Time Regulations 1998 describes time at work as being “any period during which the worker is working at his employer’s disposal and carrying out his activity or duties.”
Image shutterstock 619110737
On-call time is time when a worker is not performing job duties but must be available to work, if called upon. For example, a nurse who must carry a pager and return to the hospital immediately if paged. Although often associated with emergency services, businesses may also use On-Call staff. They are essentially a standby employee. 

Does On-Call time constitute Working Time?

More often than not, on-call time will constitute working time. This is more so the case if your on-call time is on the employer’s premises, regardless of whether or not you are actually working. In the CJEU case of Jaeger (2003), time that doctors were required to be on the premises but were allowed to sleep was still considered working time. So clearly, whether or not you are on the employer’s premises makes a difference. 

On-call time at home may also constitute working time if your on-call duties prevents you from undertaking other activities, which was decided in the CJEU Matzak (2015) case. Despite Brexit, these European Union cases remain relevant in the UK as the Working Time Regulations derive from EU law, thus EU case law will play a part in UK judgements that interpret Working Time Regulations. 

The National Minimum Wage Manual also states: “a worker who is not required to report to the employer but is free to be at home and must simply ensure that they are able to be contacted if needed, may not be treated as working. However, a worker required to spend their “on-call” time at an employer’s premises may be treated as working, even if they are relaxing or watching television.” So, as stated above where you are and what you are doing is key in determining if your on-call time is working time. If your on-call time does constitute working time, employers may be required to fit in rest breaks into your on-call shifts. 

Further Assistance?

If you have any doubts as to whether your employer is following the correct Minimum Wage and Working Time laws – please contact our employment law specialist, Karen Morovic (