The Christmas and New Year period forces a change in work organisation in many companies. For many undertakings the turn of the year is a holiday period. This is particularly true for production plants, where starting up and maintaining full-scale production in this period is often economically insensible. However, reducing production does not mean that the machinery park can be left without any supervision. Some machinery and equipment, as well as processes, despite the temporary shutdown of production require, due to their technological characteristics, ongoing supervision, maintenance and, in the event of a breakdown, immediate remedial action.
To ensure that these tasks are carried out, employers often assign on-call duty time during the Christmas and New Year period.
However, when making use of this solution, employers must bear in mind the basic rules, in particular those concerning the calculation of working time, so as not to expose themselves to the consequences of an infringement. In turn, employees need to know what rights and obligations they have in this regard, in particular whether they can refuse on-call duty and what consequences they may face as a result.
What is on-call duty
On-call duty is the time assigned by the employer during which an employee remains outside normal working hours in readiness to perform work under the employment contract. The possibility of the employer assigning on-call duty is part of his or her managerial powers exercised in the context of the employment relationship.
In principle, the employee has a duty to comply with the employer’s order and to perform on-call duty at the time set by the employer. The employee’s potential refusal to assume on-call duty is subject to assessment in the same way as the refusal to comply with any other order received from the employer. Depending on the circumstances, it may constitute grounds for a disciplinary penalty imposed on the employee or even termination of his or her employment contract.
On-call duty may be performed at the workplace or at another location including the employee’s home. The employer decides where the employee will be performing on-call duty. The employer may leave some freedom to the employee as to where on-call duty is performed, provided that the employee remains available by telephone. However, a condition for the so-called “phone stand-by duty” is that the employee is able to come to the workplace immediately in case of necessity (in a timeframe no longer than would be the case if on-call duty were carried out from home).
Restrictions
By its very nature, on-call duty presupposes that employee may be required to perform work during the on-call period. Work performed during the on-call period will generally constitute overtime. Therefore, when assigning on-call duty, employers must be mindful of the restrictions on overtime work, as well as other restrictions on maximum working hours.
Thus it will be incorrect to impose on-call duty on an employee caring for a child under the age of four without that employee’s consent. It is also forbidden to impose on-call duty on full-time employees holding jobs where maximum permissible concentrations or intensities of factors harmful to health are exceeded on days that are his or her working days, as the maximum daily working time for such employees may not exceed 8 hours. On Sundays and public holidays, on-call duty may be assigned only when the regulations allow work to be performed on these days.
On-call duty and working time
The time during which the employee has provided on-call work shall be included in his or her working time. Such work will generally constitute overtime work and should be accounted for accordingly. This means that for work performed during the time of on-call duty the employer should pay the employee’s salary together with the overtime bonus or grant time off in accordance with the rules set out in the Labour Code.
At the same time, if the employee performed work during an on-call duty day designated as a day off in the working time schedule for an average five-day week, then the employer must give the employee another day off. In doing so, the employer must give the employee the entire day off, even if on such day the employee has performed less work. The employer is expected to agree on the date on which the day off is to be granted with the employee, and this date must fall within the reference period.
Importantly, employers cannot circumvent the obligation to grant another day off by instead paying wages and overtime allowance. The provisions of the Labour Code and their interpretation by the State Labour Inspectorate are strict in this respect. A settlement of work on a day off in the form of payment of overtime remuneration is allowed only exceptionally, if the granting of another day off is not objectively possible (e.g. work on the day off was provided at the end of the reference period, granting of another day off was not possible due to the employee’s illness or previously granted annual leave, etc.).
Adequate rest must be ensured
If the employee is not working during the on-call duty time, this time shall not be counted as working time.
However, if the employee was on on-call duty at the workplace, he or she is entitled to time off work for the duration of that on-call duty. If the employer does not have the possibility of granting time off to the employee, then for the time of on-call duty spent at the workplace the employer is requested to pay the remuneration resulting from the employee’s personal classification expressed by an hourly or monthly rate, and if such remuneration component has not been separated when determining the terms and conditions of remuneration – to pay 60% of the remuneration.
The employee shall not be entitled to either time off or additional remuneration for on-call duty that he or she has performed at home or at another location of his or her choice (so-called “phone stand-by duty”) if the employee has not actually perform any work during on-call duty.
However, the on-call duty time must not violate the employee’s right to a minimum 11-hour daily rest period and a minimum 35-hour weekly rest period. Employers often seem to forget about this rule. Indeed, it is common for employees to be assigned on-call duty periods of 24 hours or even lasting entire weekends. Such action exposes employers to misdemeanour liability for violating working time regulations.
Good practices
Each on-call duty represents an additional responsibility for the employee.
However, the most onerous form of on-call duty for employees is on-call duty performed at home (so-called “phone stand-by duty”). This is because “phone stand-by duty” significantly limits the employee’s freedom to decide on his or her own time, and that without any compensation. Indeed, during the time of on-call duty employees must ensure that the employer can contact them and, if necessary, that they are physically and mentally ready for work. Employees resist being on stand-by for extended periods.
Therefore, it is good practice for employers to offer employees an allowance for on-call duty (in addition to the overtime pay due to the employee for performing on-call duty). Many employers also choose to conduct sign-ups for on-call duty by willing employees. However, on-call duty sign-ups need to be conducted sensibly in order to avoid the allegation of scheduling overtime. Such allegation may be faced by an employer who knows in advance that there will be a need to work during on-call duty and that such need will occur regularly, on a large scale and with involvement of a significant number of employees.
When assigning on-call duty time to subordinates, employers must also respect the principle of equal treatment of employees and the prohibition of employee discrimination. It is therefore worth ensuring that on-call duty is allocated equally among all employees in positions where it is needed. In extreme cases, an employer who requires the same employees to be on-call all the time may even be subject to a charge of mobbing.
In order to mitigate these risks, the introduction of on-call duty regulations may be a good solution. Employees will surely appreciate the employer for introducing transparent on-call duty regulations.
Agnieszka Godusławska
