Common use of Auditability Clause in Contracts

Auditability. To ensure auditability of the above arrangements, staff will be expected to keep records in line with local policy to demonstrate such things as; Time of call Duration of call Reason for call Patient/Client/resident involved Outcome The Joint Secretaries of the NHS Staff Council have received the information which is attached from the Department of Health. This is in response to the sub-group’s request for advice on how employment law relates to on-call. Secretariat March 2010 Distributed to all members of the on-call sub-group on 1 April 2010. 1. Working time is defined by reg.2 WTR as follows: ““working time” in relation to a worker, means- any period during which he is working, at his employer’s disposal and carrying out his activity or duties, any period during which he is receiving relevant training, and any additional period which is to be treated as working time for the purposes of these Regulations under a relevant agreement.” 2. There are a number of cases which have considered issues relating to what constitutes working time and the following general principles can be extracted from them. 3. First, workers who are required to be at their place of work, or at a particular place other than their home, while on call will be entitled to count the whole of any such period, including periods of inactivity or sleep, as “working time” for the purposes of the WTR/WTD. 4. Secondly, workers who are only required while on call to be at a location at which they can be contacted and from which they can promptly reach their workplace if necessary will only be entitled to count as “working time” those periods when they are actually at work. 5. Thirdly, more difficult and case specific issues may arise where workers are not required to be at work, but are required to be at home (for example, to answer emails or give telephone advice). Employees who are required to remain at home while on call will inevitably suffer some restriction on their freedom to pursue other activities. On the other hand, they are not required to remain apart from their family or social environment, and are not subject to the type of constraints inherent in attendance at a workplace. Case law suggests that these features would on the whole take time spent at home outside the definition of “working time” in the WTD, provided that home is not also “the working environment”. This is because the ECJ held that in order to rest effectively, a worker must be able to remove himself from the working environment. Whether this is the case will very much depend upon the individual circumstances. 6. At one end of the scale, where the home is also the workplace, it is clear that workers whose home was their workplace were at work while on call, since they could not “remove themselves from the working environment”. However, home would probably not be the “working environment” for workers who were required to be at home during on-call periods, but who were only on call occasionally, and contacted only occasionally whilst on call. In between these two situations, there will be others where the considerations are more finely balanced and would need to be looked at carefully on a case by case basis.