These two questions deal with the updating of policies on the use of 3G phones at work and on-call rota systems and the Working Time Regulations.

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Question 1
With the increasing spread of 3G phones, it is possible for them to be used to send images of confidential materials or of other employees, thus infringing their human rights? I am currently updating our policies to restrict their use or even ban employees from bringing them into the office. Where can I find guidance on what is/is not acceptable?

Answer 1
The sending of digital images from 3G mobile phones, and/or the photographing or filming of fellow employees, customers, visitors or any member of the public without their consent may breach an individuals’ right to privacy and could in certain circumstances constitute sexual harassment.

As an organisation you should update your bullying and harassment policies and mobile phone policies to reflect this and confirm the consequences of breaching it. Additionally, it may be appropriate to build into your policies that sending confidential information using these phones is a potential disciplinary matter. There is, however, no specific legislation in relation to this.

Question 2
We are currently looking at implementing an on call rota system for our IT system support team, which would mean that staff would work during the day between 8.00am to 8.00pm and then 1 member of staff would be required to be on call during the night, outside normal hours.

There are currently 4 members of staff in the team and we will be looking to recruit one additional member of staff. The on call rota would fall to 1 in 5. The current staff work shift patterns during the day. I would be grateful if you could clarify a few issues relating to rest periods:

Having looked at the working time directive, I am correct in assuming that we may be exempt from the 11 hour rest break rule under regulation 21 part(e). where the worker's activities are affected by:

(i) an occurrence due to unusual and unforeseeable circumstances, beyond the control of the worker's employer;
(ii) exceptional events, the consequences of which could not have been avoided despite the exercise of all due care by the employer;

In addition do we have an obligation under regulation 24 to provide compensatory rest break, which should be equivalent to the on call duration, i.e. 1/2 on call then they come in 1/2 hour later?

Answer 2
You are incorrect in assuming that you would fall within the exemption which deals with unusual and unforeseen circumstances. It is clearly foreseeable that the IT person would be called upon during the night to rectify any problems.

I therefore do not consider that there is an exemption which covers your particular situation and so these employees should be given their daily and weekly rest periods as outlined in the WTR.

Clearly, if the employee is at home when on call and is able to go about their normal activities, then only the time spent responding to calls would count as working time.

You, as the employer, can enter into a workforce agreement with these employees to modify or exclude the provisions relating to daily rest periods. The regulations themselves are not clear as to the length of compensatory rest to be given. The safest approach is to give the whole of the rest period (i.e. 11 hours for daily rest) but it could be argued that the amount of compensatory rest need only be given for the time spent actually responding to calls. Unfortunately, there has as yet been no guidance on this from the Employment Tribunals.

Paula Matheson, employment consultant, Croner

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