1. The general right to time off

Background to the law on time off

Trade unionists in recognised workplaces have had the legal right to time off with pay for duties and training since 1974. The rights were established under the then Labour government and remained in place until legal changes in the late 1980s restricted the right to paid time off.

These changes meant that union reps could no longer claim time off unless the issue for which they needed the time was related to something covered by the recognition deal. In addition, the right to time off was restricted to matters only to do with the rep’s own employer, not an associated employer. These changes significantly limited the rights to paid time off.

The changes introduced under the Employment Act 2000 giving union learning reps the right to time off, represent the first major extension of time off rights for trade unionists since the legislation was introduced in 1974.

Unions can win improvements to time off rights if they raise the issue with their employers. The fact that there is now quite a range of legal rights which require, at the very least, that employers consult with representative bodies, makes it more likely that they will be willing to negotiate formal arrangements.

Winning better time off rights gives unions the opportunity to work to strengthen union organisation in the workplace and to recruit new members.

Agreeing time off arrangements

Although there is no legal requirement to have one, most well-organised workplaces will have a formal agreement with the employer on time off. This will set down the conditions under which time off will be given. Agreements can either set down specific amounts of time off, or give time off as required.

If there is no formal agreement on time off in your workplace then the first step should be to begin negotiations on an agreement. This will allow reps to have more orderly arrangements for time off and should make it less likely that disputes arise over either when time can be taken or whether it should be paid.

Section 5 of the Acas Code of Practice on Time off for trade union duties and activities (2010) covers agreements on time off. It states that there are “positive advantages” for employers and unions in having agreements which reflect their own situations. The benefits of this include:

• having clear guidelines against which applications for time off can be determined;

• helping union reps and managers alike, to have realistic expectations;

• limiting the possibility for misunderstanding;

• helping with planning; and

• enhancing the prospects of fair and reasonable treatment.

Paragraph 57 of the Code says that agreements could specify:

• the approximate amount of time off permitted (of course this will vary according to circumstances);

• the occasions on which time off can be taken (for example, attendance at certain meetings);

• when time off will be paid;

• how taking time off at short notice can be authorised;

• how pay will be calculated;

• who will be paid;

• what facilities and equipment reps will be able to use;

• how the confidentiality of reps’ work will be maintained;

• the process for requesting time off — including how cover will be arranged; and

• how grievances about time off can be registered and (hopefully) resolved.

The Code says that agreements on time off “should be consistent with wider agreements” dealing with constituencies, the number of representatives and the election of officials (paragraph 59) and that in smaller workplaces it “might be thought more appropriate” to “reach understandings” rather than to have a formal agreement.

It is important that the time off agreement also takes account of the position of those whose working hours or working arrangements differ from the norm. The Code (paragraph 43) says that employers should bear in mind the difficulties union reps and members may experience in representation and communication. It points out that there are particular difficulties in relation to:

• shift workers;

• part-time workers;

• home workers;

• those employed at dispersed locations; and

• workers with particular domestic commitments.

Union responsibilities

The Code (paragraph 44) also points out that unions should take steps to ensure that time off arrangements work satisfactorily. It recommends that unions should:

• ensure that reps are aware of their role, responsibilities and functions;

• notify management in writing as soon as possible of the appointment and resignations of reps;

• ensure that reps are given their appropriate written credentials quickly; and

• ensure that employers are told of any special duties or functions a rep might have.

Of course, the Acas Code of Practice is not legally binding and the fact that your union might not comply with these recommendations will not give your employer the automatic right to turn down requests for time off.

However, because the Code can be used as evidence in a tribunal, it would be to a union’s advantage to ensure that, as far as possible, they do comply with these recommendations.

Facilities for representatives

The Code (paragraph 46) recommends that employers consider making facilities available so that representatives can “perform their duties efficiently and communicate effectively with their members, other workplace reps and full time officials”. These facilities can include:

• access to means of communication such as a notice board, a phone, email, an intranet and the internet;

• accommodation for meetings;

• provision of a place where reps and individuals facing a disciplinary charge, or bringing a grievance, can meet to confidentially discuss the situation;

• dedicated office space (where the volume of work necessitates this);

• access to members based at different locations; and

• use of computer facilities to access e-learning tools.

The above suggested list is not exhaustive. For example, Nottinghamshire County Council employee reps are entitled to use photocopying facilities and will receive lists of new starters. At the Royal Society for the Prevention of Cruelty to Animals, employee reps have access to desktop publishing facilities as well as storage space.

Access to facilities and details of what these are, should be included in any workplace agreement, (including any workplace learning agreement).

The Code also says that accommodation for meetings could include provision for Union Learning Reps (ULRs) and for a union member or members to meet to discuss relevant training matters.

The larger the workplace the more these types of facilities should be available. But as a minimum a rep will need a notice board, a desk to work from, a filing cabinet or other secure space to keep confidential information and a telephone to allow reps to contact their union when they need to.

There will need to be assurances from the employer that telephone calls and emails will not be monitored in any way. In addition, the agreement should cover other forms of computer access to ensure that there are no management systems in operation which would give the employer information on how reps are dealing with union business.

The 2004 Workplace Employment Relations Survey (WERS) and the June 2006 government review of facilities and facility time, found that most reps have access to some facilities. Specifically, the WERS found that about 90% of reps had access to a telephone and around two-thirds of reps had access to a computer and email. However, use of an intranet was a lot less common — available to only around a quarter of reps. Perhaps unsurprisingly, those in larger companies and those spending more time on their duties as reps, tended to have better facilities.

The 2010 LRD survey results suggested that some employers appeared to be trying to link the provision of improved facilities to reps’ agreement to new policies.