After five blog articles on the issues facing the inspecting ranks, it seems necessary to write an additional article.

Whilst I covered on-call in a previous article, there seems to be an ever-changing environment within policing where on-call is being used in a very different way to what it was intended for.

I have spoken to officers and seen emails around on-call being used in a way to cover for a position which is in itself a full-time role. What this means is that members of the inspecting ranks are finishing their normal work, which is generally over 40 hours per week, and are then covering on-call roles.

Many of the inspecting ranks will be more than happy to assist the force where there is a need. However, it seems that the goodwill is being abused by senior management and this seems to be down to a lack of officers in the inspecting ranks.

The first thing to remember is that on-call is voluntary - you cannot be made to be on-call. Any decision not to be on-call should not result in any unfavourable treatment. There could be many valid reasons why you don’t want to be on-call.

After travelling to work, spending over eight hours dealing with highly stressful police work, then travelling home, you may at the end of that want to spend some quality time with your family. You may also have a disability, or have carers responsibilities, which might preclude you from working excessive additional hours or working at particular times.

We do realise officers are under constant pressure to be placed on-call. Luckily there is some additional protection under the working time directives (WTD). If you are finding that advertised position within your force are requiring candidates to be on-call, then please speak to your local branch.

Unless you have opted out of WTD, and the advice from PFEW would be that you don’t, then you have some protections. If you have opted out you are allowed to opt back in to the protections by providing written notice, sometimes with as little as seven days’ notice.

The maximum that you should work over a 17-week reference period is an average of not more than 48 hours per week. When you are on call - most of the time spent on the phone discussing work-related matters for which you are on-call for, thinking about and making decisions at home and travelling to and from work - being at work will be duty time.

Duty time is automatically working time and counts towards the 48-hour maximum. For clarity, even with opt-outs and exemptions (see below) in place, it is still the employer's responsibility to ensure that the hours worked do not pose a risk to the worker, or any other person's health and safety, especially if they are also required to work nights.

There are ongoing legal debates around what constitutes working time. Essentially, the more restrictions an employer places on a worker's "on-call" time, the more likely it is to be working time. If someone on-call must respond to calls and attend the police station or a crime scene within a set amount of time, which would imply they have to stay within a certain geographical location, and that they cannot consume alcohol, then the whole of the on-call time is likely to be working time under the WTR. Any concerns around this please speak to your local Federation branch.

Under Health and Safety legislation there is a requirement for employers to have a suitable system available to correctly record the hours that are worked by employees. If your force system is not suitable to perform this requirement, please speak to your local Federation branch who will be able to raise this matter on your behalf. There are ways to enforce this requirement on employers through compliance notices. If this is needed, then your local Federation branch will need to be informed.

Once the hours are correctly recorded, the real picture around the hours actually worked will become clear. There is a further requirement on the employer to ensure that employees don’t work over the 48-hour average maximum. Once this is triggered over the 17-week reference period, there is a requirement for managers to work with staff who are in breach to find ways to lower those hours.

If managers can’t find ways to do this then, once again, we get into the area of compliance notices. And again, you will need assistance from your local Federation branch to assist you in this area. Managers should be proactive in identifying the potential for employees to breach the WTD and should ideally take action prior to any breaches occurring.

As an employee (under H&S Legislation), officers also have a responsibility to ensure they are working within the legislation and not regularly breaching the WTD. The information in this blog provides guidance around some ways to deal with this responsibility.

There are some concerns the 17-week reference period is not properly recorded on some force systems. The reason for this is the 17 weeks is unlikely to ever be 17 weeks - it is not simply the number of hours worked over 17 weeks divided by 17 weeks. There are excluded days which factor into the formula when calculating the hours, these excluded days include annual leave (the statutory minimum), sickness and maternity leave. We will be asking forces to check whether the systems being used are calculating the hours correctly.

The main issue behind this is if you are on-call and are regularly required to work whilst on-call, then there is a high likelihood you will be in breach of your WTD hours.
This is something your employer can’t ignore. You could face the argument policing is exempt as it is a civil protection service.

This exemption is limited in its scope due to the reasoning behind it. It is there to deal with the unforeseeable and not something which can be planned in advance. We would not expect any officer to book off-duty when they are required to deal with an urgent operational matter. This is very different from the scenario where being on-call has resulted in you being in breach of the WTD limit. If you have any issues with this, please speak to your local Federation branch.

As we have already said, even with opt-outs and exemptions in place, it is still the employer's responsibility to ensure the hours worked do not pose a risk to the worker, or any other person's health and safety, especially if they are also required to work nights. Employers should maintain accurate records of working hours to ensure compliance with the WTR.

Non-compliance with the WTR can result in legal and financial consequences for employers including fines and even criminal charges in very serious cases. The enforcement of the WTR is mainly carried out by the Health and Safety Executive (HSE) but workers can also bring claims in an employment tribunal for breaches of the WTR.

Sanctions for non-compliance can include:
• Compliance notices issued by the HSE or local authority inspectors, which can include improvement or prohibition notices.
• Unlimited fines and up to two years’ imprisonment for directors if the HSE issued notices are not complied with.
• Compensation for workers in an employment tribunal where it finds that an employer has breached the WTR, it can order the employer to pay compensation to the affected employee. The amount of compensation can vary depending on the nature and extent of the breach.

If you are working over your maximum hours, then we advise you to raise this with your line manager at the earliest opportunity. If there is a refusal to lower your hours, we ask that you contact your local Federation branch.

 

Related articles and resources

> A guide to the working conditions of inspecting ranks

> Inspecting ranks (Part-1): Know your rights and manage your time

> Inspecting ranks (Part-2): Understanding rest days in lieu

> Inspecting ranks (Part-3): Managing your hours and flexibility

> Inspecting ranks (Part-4): Is it time to revise PNB 1994 Agreement?

> Inspecting ranks (Part-5): Know your entitlements on part-time and rest day working, and on-call