Truslove v Scottish Ambulance Service

On-call time is working time where the worker is required to remain at a place determined by the employer and available to respond. The question is not whether the worker is confined to one precise location, but whether the employer has removed the freedom to choose where the worker stays. A worker required to remain away from home within narrow limits, with an immediate response obligation, cannot enjoy the quality of rest contemplated by the Working Time Regulations 1998. The approach in Jaeger provides the governing principle. A purely factual comparison with other cases is inadequate unless the legally material features are identified.

Relief ambulance paramedics were required to provide overnight cover at stations which did not operate night shifts. During the on-call period they had to stay in accommodation within three miles of the station, keep the ambulance nearby and seek to respond within a three-minute target.

The Employment Tribunal held that the on-call periods were rest rather than working time and dismissed the claims. The appeal concerned whether the Tribunal had applied the correct principles under regulation 2 of the Working Time Regulations 1998, in particular the distinction between being required to remain at a workplace or employer-designated place and merely being contactable elsewhere.

1. Appeal allowed. The Employment Tribunal had erred in law by failing clearly to identify the governing principle and by treating near-confinement to one specific location as the decisive feature.
2. Regulation 2 of the Working Time Regulations 1998 distinguishes working time from rest. The governing approach, derived from Jaeger and reflected in SIMAP, is whether the employee is required to be present and remain available at a place determined by the employer. The question is whether the employee is free to choose where to stay, not whether the specified location is narrowly or precisely defined.
3. The question whether the time is the worker’s own is a useful aid, but it cannot replace the statutory test. The health and safety purpose of the legislation requires attention to the degree of employer control and the worker’s freedom to pursue private activities.
4. Blakley was materially different. The worker there was not required to remain at the employer’s premises or at home, whereas these claimants had to remain within three miles of the station. The Employment Tribunal’s factual comparison therefore failed to identify the relevant legal distinction.
5. Transocean did not determine the issue. It concerned whether an accepted rest period could count as annual leave, rather than whether a period was working time or rest in the first place.
6. On the facts, the claimants were required to remain at a particular place away from home and to respond within a three-minute target. The time was therefore working time and not rest. The Appeal Tribunal substituted that decision.

• Employment Tribunal: held that the on-call periods were rest rather than working time and dismissed the claims.
• Employment Appeal Tribunal: allowed the appeal and substituted a decision that the on-call periods constituted working time.