2. The rights of trade union representatives and trade union members

The law

Section 168 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 92) says that an employer must “permit” a reasonable amount of paid time off during working hours to an employee who is an official of a recognised union. To gain the right you have to be:

• an employee, that is someone working under a contract of employment for the employer, regardless of the hours you work or how long you have worked;

• a union official — defined in section 119 as an officer of the union or the branch or anyone elected as a representative according to union rules;

• a member of an independent union — defined in section 5, TULR(C)A 92, as a union neither “under the domination or control”, nor subject to “interference” by, an employer or employer’s group;

• in a workplace where the union is recognised “to any extent for the purposes of collective bargaining” — this can be either through a voluntary recognition deal or where the union has won statutory recognition. This means that it covers workplaces where recognition rights are limited to just a few issues; and

• the duties for which the time off is claimed have to relate to your own employer and not an associated employer.

The time off has to be “for the purpose of carrying out any duties” concerned with:

• collective bargaining with your employer; or for

• the performance of any functions on behalf of employees (as agreed with your employer).

Section 168(2) says there is a right to time off for training in aspects of industrial relations concerning these duties, provided that the training is approved either by the TUC or by your own union. There is also a right to time off to take part in trade union activities. However, the employer is not legally obliged to pay employees taking time off for union activities.

Section 170 of the Trade Union and Labour Relations (Consolidation) Act 1992 TULR(C)A 92 says that an employer should give employees who are members of a recognised, independent union reasonable time off (which does not have to be paid) during working hours to take part in:

• activities of the union; and

• activities which the employee is taking part in as a representative of the union.

Section 170(2) specifically excludes from the definition of union activities any that consist of industrial action. There is no right to have time off to take industrial action, though it may be possible to claim time off in cases where industrial action is being discussed.

If the above conditions are met and the rep is unreasonably refused time off, the employer can be taken to an employment tribunal.

Requesting time off

If there is no agreement which makes it clear when reps get time off, a request will need to be made for it. This should be made as early as possible. Failure to do this can provide the employer with reasonable grounds for rejecting the claim.

The Acas Code of Practice on Time off for trade union duties and activities (2010), also recommends that there should be attempts between employers and the union to agree mutually convenient times off. For example, where the time off is to hold a workplace meeting, the Code suggests (paragraph 53) that consideration should be given to holding it:

• towards the end of a shift or the working week; or

• before or after a meal break.

The employer is legally obliged to consider each application for time off “on its merits” (paragraph 55 of the Code). The employer also has to consider the reasonableness of the request in relation to agreed time off already taken or in prospect.

This means that the employer can look at reps’ overall record for time off for union duties or activities in deciding whether or not to concede a specific request.

The employer has no legal obligation to give reps time off if it is not requested. And as the case of Ryford v Drinkwater [1996] IRLR 16 shows (see Chapter 6: Insufficient notice), if the request is made too late, the employer has no opportunity to agree to, or refuse it.

Excluded workers

You have the right to time off for trade union duties so long as you are an official of the union, regardless of the hours that you work in the week or how long you have been working for the employer. However, you are excluded from the right to claim time off if you:

• are not an employee (for example, if you are self-employed or working through an agency);

• ordinarily work outside the UK;

• are in the police service; or

• work on a shipping vessel and are paid by share of the catch.

Defining duties and activities

Employers have a legal obligation to give trade union representatives in recognised workplaces paid time off to carry out their union duties, together with the right to unpaid time off for their trade union activities. So long as you are a representative, appointed or elected according to union rules, you must be given the right to time off.

There may be circumstances where your employer could try to question whether you are a union representative, for example if it is alleged that you were not elected according to union rules. In general a union will be able to have whatever types of representatives it wants provided there is a rule or a custom to have them.

In the case of Doyle v Westminster Press EAT/201/83 the Employment Appeal Tribunal rejected an employer’s argument that a branch equality officer was not a union officer under the legislation. The union nationally had agreed to the appointment of this post even though the union branch did not formally have a rule covering this appointment.

Trade union duties

Trade union duties are those connected with, or related to, negotiations concerned with:

• terms and conditions of employment (or the physical conditions of work);

• recruitment, suspension and dismissal;

• allocation of work;

• discipline;

• trade union membership (including non-membership);

• facilities for trade union reps and officers; and

• procedural matters — such as for recognition or consultation.

These are often referred to as section 178 matters because they are listed in section 178 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 92).

The Code (paragraph 14) gives examples of the circumstances in which time off for union duties could be claimed. These are to:

• prepare for negotiations — this includes time off in order to attend relevant meetings (Beal v Beecham Group Ltd [1982] IRLR 192 CA and London Ambulance Service v Charlton [1992] IRLR 510);

• inform members of progress;

• explain outcomes to members; and

• prepare for meetings with management — even in cases where there are no negotiating rights, but only representational rights.

There are some situations where there will be no right to paid time off. For example, in one case a shop steward wanted time off to sit in on a meeting at the Central Arbitration Committee (so that he could see how it operated in the event that he took a claim there in the future). The tribunal held that this did not amount to a trade union duty (McQueen v British Aerospace COIT/970/163).

The most recent Workplace Employment Relations Survey shows that for the majority of representatives, their key tasks revolve around terms and conditions, welfare (including health and safety), and staff selection and development. Of course, union reps (as opposed to non-union reps) tend to have a broader remit and are considerably more likely to get involved in personal cases such as disciplinaries.

As far as matters internal to the workplace are concerned, you should have the right to whatever time is needed and reasonable time to consult, prepare and inform members.

However, even though there is a clear legal right to paid time off, around one in seven respondents said that they had experienced problems getting time off for essential trade union duties.

Trade union side meetings

Union reps need to meet separately from their management on a regular basis to discuss strategies and share information. In some workplaces this will involve meetings with representatives who are all members of the same union. In others it will include meetings with representatives of other unions also recognised in the workplace.

There may indeed be occasions when reps need both single union and joint union meetings. Union side meetings are essential where there is to be negotiation or consultation between union(s) and management. It is useful to lay down in the agreement with the employer the frequency of such meetings and who will attend them. More often than not a meeting once a month may be enough, but there should be provision for additional rights to time off for staff side meetings in specific situations, for example:

• if the workplace is experiencing a high labour turnover;

• where significant changes are taking place leading either to re-organisation or redundancies;

• during the period leading up to pay negotiations;

• where there is new legislation which will impact on workplace matters;

• if the level of disciplinary or grievance hearings has increased;

• where there is a change in management; or

• where there is a change in the ownership of the business.

Situations like these call for an increase in the amount of time off that trade union representatives will need if they are to carry out their union duties properly.

Although the legislation does not list the range of union side meetings that meet the requirements for paid time off, paragraph 38 of the Acas Code of Practice is more helpful. Also, there have been a number of cases where the tribunals and the higher courts have had to decide whether or not the request for paid time off comes within the definition of section 168, TULR(C)A 92.

As a minimum requirement the meeting must be an official meeting of the union. If there has been a history of trade union side meetings this is likely to be a strong argument in favour of the right to paid time off, particularly if in the past the employer has paid for these.

A meeting can come within the definition for time off even if it is not to do with negotiations directly with the employer. In one tribunal case, Currie v Southampton Technical College COIT.2913/161, a union side meeting held to discuss negotiations between the union and representatives of the employers’ forum for further education, gave a right to time off.

There are even cases where trade union side meetings to discuss industrial action can come within the definition of trade union duties giving a right to paid time off, as the following two cases show.

Two members of the journalists’ NUJ union, applied for time off to go to a conference called to discuss their annual pay claim and to consider industrial action. Their employer refused to pay for their time off on the grounds that this was just a trade union meeting amounting to an activity and not a duty, and that furthermore there was no right to time off for industrial action.

The EAT disagreed and held that the right to time off did include time to attend meetings that were purely on the trade union side. It also held that while time off to plan industrial action might reasonably be refused, time off to discuss it could come within the definition of a trade union duty (Oxford & County Newspapers v McIntyre and Shipton EAT/95/86).

Senior shop stewards employed by the Whitbread group were called to meetings to discuss industrial action. Initially all were told they would be paid, but the offer was then withdrawn. An employment tribunal ruled that the meeting was capable of amounting to a trade union duty, giving them the right to be paid (Ennis v Whitbread COIT/24002/84).

In addition, paragraph 62 of the Acas Code of Practice specifically states that because employers and unions have a responsibility to use the agreed procedures to settle problems and avoid industrial action, time off “may be permitted” for this purpose, particularly where there is a dispute. When dealing with problems that could give rise to industrial action, this should be used to claim additional time off to assist in settling problems and resolving disputes.

If seeking time off for a union side meeting, it may be the case that the employer asks for a copy of the agenda for the meeting, to confirm that it is a meeting which would fall within the paid time off rights. You do not have to provide a copy, but if you are refused the right to time off and go to a tribunal, the tribunal may well take this into account in deciding whether your employer acted reasonably in refusing time off.

Accompanying workers at disciplinary or grievance hearings

Trade union reps have the right to a reasonable amount of paid time off to accompany workers to disciplinary or grievance hearings, provided that they have been certified by the union as being capable of acting as a workers’ companion. Although there is no specific entitlement to time off for training to act as a companion, under the provisions of sections 10-12 of the Employment Relations Act 1999, training for representation should come within the general right to training for trade union duties.

In some workplaces the agreement may provide for a right to time off to accompany workers in other workplaces, for example where the union is trying to recruit or reach a recognition deal with a new employer. Rights to time off in these circumstances are dependent on what you have managed to negotiate with your employer.

Time off for training

Section 168, TULR(C)A 92 gives union reps the right to paid time off during working hours to undergo appropriate, authorised training relevant to their duties. The Code makes it clear that the training is “in aspects of employment relations relevant to the duties” (paragraph 24). It suggests that these duties may vary according to:

• the collective bargaining arrangements in place, in particular the scope of the recognition deal;

• the structure of the union;

• the rep’s role; and

• how proposed collective redundancies or TUPE transfers are handled.

The Acas Code recommends that employers consider releasing new reps for initial training in basic representational skills “as soon as possible after their election or appointment,” particularly bearing in mind that suitable courses may be infrequent. A good workplace procedure agreement will provide for release for this training within a defined period of time, for example within the first three months.

When making a claim for time off for training it is important to submit the claim as early as possible (giving at least a few weeks’ notice of nominations for training courses). Leaving it too late will provide the employer with a good argument for turning it down. The Acas Code of Practice also recommends (paragraph 52) that reps who are making a request for paid time off should provide a copy of the syllabus or prospectus, indicating the contents of the training course.

The employer will be acting reasonably if a decision is taken on the suitability of the course, based on what is said in the syllabus. In the Crook case the refusal of a request for time off for ordinary reps was reasonable. According to the syllabus it was only suited to senior reps. Even though the syllabus had later been widened to include all reps, the employer did not know this at the time of the refusal.

The law allows employers to place restrictions on the types of training to which the right to time off applies. If the syllabus is too wide, so that it goes well beyond what would be appropriate for training in collective bargaining it may be reasonable for the employer to refuse time off.

In one case a course on job security which dealt with issues like North Sea oil, import controls and EU policy was accepted as not coming within the paid time off rights. Other examples of where an employer might legitimately turn down a request for time off would be:

• if you are an experienced union rep and are asking for time off to go on a basic course aimed at new reps; or

• where you want to go on a course which is not related to your trade union duties — for example, a pensions course where there is no occupational pension.

Section 168(2), TULR(C)A 92 says it has to be training approved by the TUC or by the individual’s own union.

As well as training for new reps, the Acas Code (paragraph 26) recommends that employers agree to give paid time off for:

• training to develop the rep’s skills in representation, negotiation and consultation;

• training to enable a rep to act as a companion at disciplinary and grievance hearings;

• further training, particularly where the individual has special responsibilities;

• training to assist reps to understand issues connected to the changing needs of the workplace; and where

• legal changes might affect industrial relations in the workplace, requiring the reassessment of agreements;

• there are proposals to change the negotiating structure or where significant changes in how work is organised are being contemplated.

The June 2006 government review of facilities and facility time found that only about a fifth of non-union reps are trained. Of those that do take part training, one in seven do not receive paid time off to attend. Also, employers may try to limit the right to paid time off to courses considered appropriate to the individual worker’s union position, but this does not give them an absolute veto on courses, as the tribunal case of Hayes v Asda [1996] demonstrates.

There are circumstances where the tribunals will interpret the law as putting limits on the type of course for which paid time off should be given.

In the case of MoD v Crook and Irving [1982] IRLR 488, the EAT said that since a union course was described in the syllabus as being for convenors and senior stewards, it was reasonable for the employer to refuse ordinary shop stewards permission to attend.

In contrast is the case of Shaw v Interface Europe COIT/1800435/98 which involved the right to time off to attend a pensions course. The ruling highlights the fact that just because the employer lays on a course, this does not negate the right to time off to attend a union-sponsored course.

In another pensions case (STC Submarine Systems v Piper [1993]), the EAT held that someone who was no longer a shop steward still had the right to time off to go on a union pension law course. He was still the branch secretary and was also a member of the pension scheme management committee.

It would be useful to include within the agreement a right to time off for training for prospective trade union representatives. This ensures that when new reps are appointed they are already well prepared to undertake their duties.

It is often in the first few months while a new rep is trying to get to grips with the nature of the role that mistakes are made. Providing this form of training actually offers advantages to employers who then are not faced with having to deal with reps who do not understand their role.

Trade union activities

Provided your union is recognised by your employer to cover the class or group of workers that you belong to, you will have the right to unpaid time off to take part in the activities of your union. If your union is not recognised but another is, you cannot claim the right to time off.

If you are a representative, you may have a right to unpaid leave for certain trade union activities which do not fall within the definition of a trade union duty.

Not every activity is protected. It must be a trade union activity that has a connection with the union. Union activity in breach of union rules would therefore not come within the definition for time off rights. Nor would activities involving non-union bodies (like works councils) or where the majority of those taking part are not union members.

However, something can be a union activity even if it involves criticism of the union. In the case of British Airways Engine Overhaul v Francis [1981] IRLR 9, [1981] ICR 278 a shop steward who criticised her union in relation to an equal pay dispute was nevertheless still taking part in a union activity, according to the Employment Appeal Tribunal (EAT).

The Acas Code (paragraph 38) says that union reps should be able to claim time off to attend:

• branch, area or regional meetings where union business is being discussed;

• policy body meetings of the union such as annual conferences and union executive meetings; and

• meetings with full-time officials to talk about issues of relevance to the workplace.

Other matters for which representatives should be able to get time off for union activities would include:

• time to recruit new members

• undergoing union training which is not related to collective bargaining;

• distributing union literature; and

• voting in union elections

The right to unpaid leave is not just available to union representatives. Even if you are just an ordinary union member, you have the right to time off for union activities to allow you to participate in the life of the union. The Acas Code gives the following as examples of trade union activities (paragraph 37) for which union members should have the right to time off:

• attending workplace meetings to discuss and vote on the outcome of negotiations with management;

• meeting full-time officials to think about issues of relevance to the workplace;

• voting in union elections; and

• accessing the services of the union learning representative.

In addition, you should be able to claim unpaid time off to recruit new members and to distribute union literature. The Acas Code notes that “to operate effectively and democratically, trade unions need the active participation of members”. It adds (at the introduction to Section 3) that this can be “very much in employers’ interests”.

Most good agreements on time off will acknowledge a close relationship between trade union duties and trade union activities and not differentiate between the two, certainly as far as the rights of elected or appointed reps are concerned. The Acas Code, while pointing out that there is no legal obligation to pay for time off for trade union activities, says there will be circumstances where employers will want to consider paying workers for attendance at meetings.

The only union activities expressly excluded from the right to time off are where these activities “themselves consist of industrial action” (section 170(2), TULR(C)A 92). In other words you cannot claim time off to organise or to take part in a strike.

Since there is no legal obligation on employers to give paid time off for general union activities, many choose not to do so.

Sometimes there will be confusion over whether a request is for time off for duties or activities. In the case of Depledge v Pye Telecommunications [1980] IRLR 390, [1981] ICR 82, the EAT decided that the time off request was in relation to union activities and not duties and that therefore there was no obligation on the employer to pay.

It is important to understand that there will also be circumstances where the employer will be able to lawfully turn down a request on the grounds that it is not for activities sufficiently connected with employment. The case of Luce v Bexley BC [1990] IRLR 422, [1990] ICR 591 illustrates this point.

In the case of Wignall v British Gas [1984] IRLR 493, [1984] ICR 716 (see Chapter 6: Rep has had too much time off) Mr Wignall had asked for 10 days off to prepare a monthly magazine for his union district. The employer declined the individual’s request on the basis that he had already had 12 weeks off that year (although some of that time off had been unpaid). The EAT decided that the employer was entitled to take into account, the amount of time off that the individual had already had — the refusal was found to be reasonable.