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We were discussing the decision by the Court of Final Appeal in Leung Ka Lau and Ors v The Hospital Authority (FACV 22 & 23 of 2008) in which the CFA considered  claims by doctors employed by the Hospital Authority including their claim to to a day of rest in every seven as provided in Section 17 of the Employment Ordinance.

The doctors claimed that when they were on non-resident call, i.e. days when they were required to be available on short notice to respond to any emergencies (30 minutes) but didn’t actually have to be in the hospital, constituted a working day and not a day of rest. Their employer, who realised that this would cost them a large amount of money, fervently argued the other way.

The court held:

82.  Accordingly, a day when an employee is not entitled to abstain from working for his employer does not constitute a rest day.  When a doctor is on non-resident call it is common ground that he must remain within 30 minutes of the hospital; he must not drink alcohol; and he must remain mentally ready to respond to calls for his services.  Clearly, when a doctor is on-call, he is required to provide patient treatment should the need arise.  He is not entitled to abstain from working for the HA.  It follows that a day rostered on-call cannot qualify as a rest day under the Ordinance.  It also follows that rostering doctors on call may result in a failure to grant them one rest day in every period of seven days as required by section 17 and that such a failure would constitute a breach of the HA’s obligations

The principle seems to be that unless the employee can refuse to work that day he’s not really being given a day off.

During our discussion, one side took the view that this was an absurd principle. A lot of industries in the service sector, whether medical, financial, ICT or otherwise depend on on-call staff to satisfy demand when it arises. That doesn’t mean a demand will be made; only that it has the potential to arise. In the vast majority of cases, there won’t be the unexpected demand and the employee gets his full day of rest. Whilst you can provide for this over the long span of a contract, you can’t insist that one day in every seven should be rigidly set aside.

In response the the view was ventilated that the rationale of the rule wasn’t whether a person in fact got the day off. The rationale was the denial of freedom to plan and schedule the day. After all, what’s the point of having a day off if you can’t ever go further than a certain distance from your office. The risk and the responsibility for surges in demand  lie with the employer, and its up to the employer to have adequate staff to cover those surges and satisfy the requirements of the Employment Ordinance at the same time.

Personally I tried to not take a side in this debate but I did find myself thinking about the nature of the test afterwards. It raises intriguing questions that it doesn’t try to answer and as a matter of policy, I find that without these answers the principle is rather a blunt instrument.

Firstly, what does it mean that you’re ‘entitled’ to refuse? Does it mean that you can refuse without consequences? Or does it mean that you’re entitled to refuse, but you may be fired later for not working as hard as your colleagues or be overlooked for promotions? As Dworkin might put it, a right that’s not a ‘trump’ isn’t much of a right.

Secondly, how do we trade off being technically on-call with the likelihood of being called? If you’re 50th on the “on call” list, is your experience as qualitatively bad as the person who’s 1st? Clearly not. Does that mean if you had a sufficiently deep list of employees on call, so deep that for all intents and purposes there was an employee would never be called, would that employee be getting his entitled day of rest? My gut feeling is that he’s getting his day of rest.

Finally, perhaps especially relevant in the context of the Hospital Authority, how as a society do we trade of the utility and benefit of having our doctors where we need them – in hospitals looking after patients – against their right to take a day off? Our current balance is one day in every seven, but its not apparent to me that this is the necessary or logical trade off. Should we expect doctors to work harder because of their crucial role? Is it okay for investment bankers to work without rest because they get better annual bonuses than some GDPs? As long as the social contract is apparent when they select their profession, they should hardly be allowed to argue that they’ve been wronged. And of course, doctors are free to become investment bankers if they wish.

This case treads down some very interesting lines without really exploring them. Its broad brush approach to a very common situation leaves plenty of room for further litigation to discover the ‘true contours of the common law.’

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