Working/driving hours

[missy111]

My husband is a funeral director. He does 24/7 on call for up to two weeks at a time. No matter what time (or how many times) he is called out in the night, he is expected to work his usual 9-5 (or later) hours. Sometimes he can be out twice in the night, get back to bed at 5, up again at 7.30 and not get home until 10pm!
I am sure this is not legal, and it's certainly not safe! His boss (owner of the funeral home) says that they are exempt from the working time directive as they are a small business; I can't find anything to prove this?
Can anyone help?

Small businesses are not exempt from the working time directive.

It is likely to be in his contract. I run a 24/7 business and certain members of my staff opt out of the working directive for on call.

They can only opt out of certain aspects of the working time directive. Specifically they can opt out of the 48-hour per week limit. They cannot opt out of anything else, e.g. the requirement for 11 consecutive hours rest in every 24-hour period. And if they have opted out of the 48-hour limit they can withdraw their consent at any time by giving appropriate notice to the employer - at least 7 days unless otherwise specified in the opt-out agreement, although the agreement cannot specify a longer period than 3 months.

Thanks all. Definitely not opted out in his contract, as I queried the fact that that was missing!
Time for a letter to the md I think.
To clarify, if he gets called out in the night he can't be expected to be in until 11 hours later?

Yes. If he stops work at say 4am, he cannot be told to get into work until 3pm. He can volunteer to come in earlier, but as long as he gives his employer reasonable notice that he will take the 11 hours off they cannot reprimand him for doing so.

Doesn't matter if he's the only employee - it's not his fault they're a small business, they have to let him eat/sleep.

I used to do shift work where they'd plan to finish at, say, 7pm with a 6am start the next day. If the evening shift overran and I didn't get out til 8pm, then regardless of what was down on the rota, you would not come in until 7am.

If they don't have anyone to cover him in the morning, that's their problem, and they should have relief staff on call or have someone else for nights. Do not let them bully your husband because they're a "small business". Even people with one employee, like families with a nanny, have to operate like this.

Thanks so much everyone. We will talk about what to do from here. I suspect the issue is going to be that they will refuse to pay him if he doesn't go in, so he would lose a lot of pay!

Has he been there for more than 2 years? (employment rights kick in then)
Is he on a salary, hourly paid, or zero hours?

You could also ask on the employment board here - they have a lot of expertise.

He hasn't been there two years, 6 months so far. It's an hourly contract, guaranteed 37hrs per week plus any overtime and on call allowance and payments.

In that case be careful because they can dismiss him by just giving notice. There will be someone out there prepared to do it.