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On-Call During Annual Leave

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  • 02-07-2019 4:05pm
    #1
    tbayers
    Registered Users Posts: 501 ✭✭✭


    So where I work we are expected to be on call for 2 days as part of our two weeks holidays, yet our holiday entitlement is reduced even if on call. Is this even legal? Hard to get answers to questions like this on usual searches, forums seem to be the place..


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    #2
    maxsmum
    Registered Users Posts: 521 ✭✭✭maxsmum


    It seems totally unworkable. What if you're in Africa on safari for your annual leave? What if you're in Oz in a different time zone? Can you post the part of the contract that stipulates this?


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    #3
    brownbinman
    Registered Users Posts: 554 ✭✭✭brownbinman


    tell them to get f**ked. can't have it both ways

    Balls to that

    Mod
    Please, language!


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    #4
    tbayers
    Registered Users Posts: 501 ✭✭✭tbayers


    maxsmum wrote: »
    It seems totally unworkable. What if you're in Africa on safari for your annual leave? What if you're in Oz in a different time zone? Can you post the part of the contract that stipulates this?

    My point exactly. Its fixed leave too we don't have a choice. It isn't really in the contract and don't want to say too much more and identify myself in the process. Sounds stupid I know, but...

    And does any solicitor deal with labour issues or would you have to deal with someone well versed in the area? I know there's a lot of what ifs, is it a unionised work place etc but it's a severe issue that's hard to fathom


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    #5
    maxsmum
    Registered Users Posts: 521 ✭✭✭maxsmum


    Listen I wouldn't take the job. If that's their approach to AL you're gonna be miserable working there.


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    #6
    c.p.w.g.w
    Registered Users Posts: 4,994 ✭✭✭c.p.w.g.w


    tbayers wrote: »
    My point exactly. Its fixed leave too we don't have a choice. It isn't really in the contract and don't want to say too much more and identify myself in the process. Sounds stupid I know, but...

    And does any solicitor deal with labour issues or would you have to deal with someone well versed in the area? I know there's a lot of what ifs, is it a unionised work place etc but it's a severe issue that's hard to fathom

    There is a couple of solicitors in Limerick who focus on employment law. Assume most cities will have a few solicitors like that


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    #7
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    When you are on call this is considered "working time" and as such you can't also be on annual leave.

    This has been confirmed previously by the European Court of Justice in cases such as Bernhard Pfeiffer and Ors vs Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2005] Joined Cases C-397/01-403/01.


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    #8
    tbayers
    Registered Users Posts: 501 ✭✭✭tbayers


    GM228 wrote: »
    When you are on call this is considered "working time" and as such you can't also be on annual leave.

    This has been confirmed previously by the European Court of Justice in cases such as Bernhard Pfeiffer and Ors vs Deutsches Rotes Kreuz, Kreisverband Waldshut eV [2005] Joined Cases C-397/01-403/01.


    Thank you


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    #9
    Peregrinus
    Registered Users Posts: 26,160 ✭✭✭✭Peregrinus


    But if the total annual leave that they [claim to] give you is more than the statutory minimum, they could be reducing it by requiring you to be on call, and still be providing you with at least the statutory minimum annual leave when not required to be on call.


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    #10
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    Peregrinus wrote: »
    But if the total annual leave that they [claim to] give you is more than the statutory minimum, they could be reducing it by requiring you to be on call, and still be providing you with at least the statutory minimum annual leave when not required to be on call.

    Annual leave above the statutory minimum is a term and condition of employment, cutting it to the statutory minimum is still a breach of the employment contract in that case.


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    #11
    Peregrinus
    Registered Users Posts: 26,160 ✭✭✭✭Peregrinus


    GM228 wrote: »
    Annual leave above the statutory minimum is a term and condition of employment, cutting it to the statutory minimum is still a breach of the employment contract in that case.
    But the employment contract may provide for the worker to be on call during some of their above-statutory-minimum leave days, no?


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    #12
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    Peregrinus wrote: »
    But the employment contract may provide for the worker to be on call during some of their above-statutory-minimum leave days, no?

    On call is working time for the purposes of the Working Time Directive, not annual leave, this has been decided by the courts - an employer can't have it both ways.


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    #13
    Peregrinus
    Registered Users Posts: 26,160 ✭✭✭✭Peregrinus


    Yes. But the consequence would be that some of the days designated by the contract as annual leave must be counted as working time for the purposes of the Working Time Directive. Fine, but assuming that (a) the legal limits on the amount of working time are not being exceeded, and (b) the statutory minimum of real annual leave (i.e. not on call) is being provided, and (c) the contract explicitly provides that the worker may be asked to be on call for some of his above-minimum leave days, all we have is a day being characterised by the contract as a leave day when it's not a leave day for the purposes of the WT Directive. But is there a remedy for that?


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    #14
    GreeBo
    Registered Users Posts: 27,113 ✭✭✭✭GreeBo


    By law you are entitled to 2 weeks of unbroken leave.
    Its not unbroken if you are on call.


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    #15
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    GreeBo wrote: »
    By law you are entitled to 2 weeks of unbroken leave.
    Its not unbroken if you are on call.

    That is subject to agreement with your employer and working 8 or more months per year.


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    #16
    GM228
    Registered Users Posts: 8,925 ✭✭✭GM228


    Peregrinus wrote: »
    Yes. But the consequence would be that some of the days designated by the contract as annual leave must be counted as working time for the purposes of the Working Time Directive. Fine, but assuming that (a) the legal limits on the amount of working time are not being exceeded, and (b) the statutory minimum of real annual leave (i.e. not on call) is being provided, and (c) the contract explicitly provides that the worker may be asked to be on call for some of his above-minimum leave days, all we have is a day being characterised by the contract as a leave day when it's not a leave day for the purposes of the WT Directive. But is there a remedy for that?

    You raise an interesting question, the WTD defines working time and rest time, it sets minimum leave time, anything above the minimum is still included in it's definitions and covered by case law, it the ECJ states that time on call is working time an employer can't then decide it is not just because it is above the minimum allowed leave. I must dig it out but there is other case law showing that contracts, collective agreement etc can not over ride the provisions of the WTD (other than where specifically allowed for) and nothing in the WTD allows an employer to redefine what is working time and what it rest time irrespective of weather it falls within or outside any minimum rest or maximum working times.

    You could take a case to the WRC or even the courts for a remedy. An easy remedy is to assign a different day as leave and count the on call as a normal working day.


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    #17
    Peregrinus
    Registered Users Posts: 26,160 ✭✭✭✭Peregrinus


    Don't know about the facts of this particular case, but it seems to me that in principle you could have a situation in which the only thing the employer is guilty of is drafting a contract which, in effect, wrongly labels some on-call days as leave days. But provided he is giving at least the minimum number of real leave days, and is not exceeding the maximum working time allowed, the mislabelling of the days doesn't cause the employee any loss - he is paid for them either way - and doesn't result in his not receiving his statutory leave entitlement or exceeding his maximum working time.

    Mind you, I wouldn't care to fight the case on behalf of the employer. The counter-argument is that characterising the days as leave days evidences an intention that they should be leave days as (a) commonly understood, and (b) understood in relevant employment legislation and practice, and even if the contract is absolutely and unambiguously explicit that the employer can ask you to be on call, what you have there is a contradiction or inconsistency, which is going to be resolved against the employer who drafted the contract and in favour of the worker.


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