Is time spent on call "working time" for the purposes of the Working Time Regulations 1998?

Guidance on what amounts to "working time" was given in Sindicato de Medicos de Asistencia Publica v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2002] IRLR 845 ECJ, which involved doctors on call. The European Court of Justice ruled that where a worker is obliged to be present and available at work during on call time, this time must be regarded as working time for the purpose of calculating the limits under the Working Time Directive. However, time on call spent away from the workplace during which the worker is free to pursue other activities is not working time. In this situation only time linked to the actual provision of services must be regarded as working time.

The European Court of Justice in Landeshauptstadt Kiel v Jaeger [2003] IRLR 804 ECJ held that on-call duty, performed by doctors who were required to be physically present in the hospital and who were permitted to rest or sleep in rooms provided for them there during periods when their services were not required, constituted, in its entirety, working time under the Working Time Directive.

The decision in Jaeger was applied in Hughes v Graham and another t/a Graylyns Residential Home [2008] All ER (D) 137 (Oct) EAT, where a care worker was provided with a flat near her workplace to allow her to be on call seven nights a week. The Employment Appeal Tribunal found that the employee's home was not separable from her workplace, and she was entitled to be regarded as working when she was on call, regardless of whether or not she was called out during this time.