If an employee is “on call” over a day that they would otherwise be on annual leave (e.g. a bank holiday or shut-down period), are they entitled to a day off in lieu, even if they are not called in to work?

For the purposes of this article we are assuming that an employee has an entitlement to 5.6 weeks holiday and although they receive overtime payments (at a rate of pay higher than their basic pay) for any work done outside of normal working hours they are not paid for being “on call” out of working hours (unless they are called out, in which case the overtime rate is paid based on the amount of work done).

It is relatively obvious that if an employee agrees to work on a day when the rest of the business is closed then they should be given another day’s holiday in lieu (to make up the entitlement to 5.6 weeks).

However, what happens if they agree to be “on call” on this bank holiday? Does that constitute work entitling them to a day in lieu?

If they are offered another day in lieu and are then called out on this bank holiday, are they still entitled to be paid at the increased overtime rate in addition to the day in lieu, or should they be paid as if it was a normal working day?

There is nothing specific in the Working Time Regulations (WTR) 1998 that would deal with a situation where the employee is called out on a day of holiday. At the very least the employee would have to be given another day’s holiday if they were called out.

However, from a legal point of view it seems unlikely that a day spent “on call” can be treated as statutory holiday even if the employee is not actually called out.

The whole point of annual leave is for the worker to engage in rest and relaxation rather than work. Any restrictions on how such leisure time is spent (e.g. remaining at all times contactable by phone or staying within a set radius of the workplace) would be contrary to the policy behind ensuring employees have a right to annual leave.

Also, Tribunals have previously made Judgments which suggest that time spent on call should actually be treated as working time even while they are inactive.

Ultimately, whether employees “on call” are actually working (and should receive pay accordingly) will be determined on a case by case basis depending on the facts. However, the more restrictive the rules that the employee has to abide by (whilst on call) the more likely it is that they will be found to be working.

A further complication is that the WTR 1998 sets rules requiring employers to give notice if they require workers to take (or not take) holiday.

If a worker is due to take a day’s holiday, but the employer subsequently requires them to cancel the holiday and work instead, at least a day’s notice must be given. There is no legal basis for a day to be treated as holiday on a provisional basis depending on the employer’s need as it arises during the course of the day.

In the case of Sumison -v- BBC (Scotland) the Employment Appeal Tribunal ruled that if an employer approves holiday over what would usually be an “on-call” day then the employer foregoes their right to call the employee in on that day. If a worker is on annual leave then they are relieved of the obligation to keep themselves available for work.

Each case would probably need to be determined on its specific facts, but the above is strong evidence that an “on-call” day cannot be combined with a day’s annual leave.

The worker’s rights to overtime pay for the day spent on-call, can be dealt with via a carefully drafted employment contract as long as the employee has a minimum entitlement to 5.6 weeks’ paid holiday each year, and receives at least the national minimum wage for the number of hours worked each month.

However, as above, depending on the exact nature of the “on call” requirements it is possible that all on-call time should be treated as working hours for minimum wage purposes even while the employee is not actively working.

If you have any questions regarding holiday entitlement or calculations for workers with irregular or part time hours please contact our experienced employment law team on 01604 609560 or via e-mail: employment@dfalaw.co.uk