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4. Time off rights for other reps
The rights of union safety representatives
The law
Regulation 4(2) of the Safety Representatives and Safety Committees Regulations 1977 (SRSCR 77) says that an employer has to permit a safety representative to take such time off with pay “as shall be necessary” to:
• perform their functions; and
• undergo such training as would be reasonable.
Defining safety duties
Safety representatives have similar rights to time off as other representatives. However, the right to time off is not constrained by the concept of reasonableness as it is in other cases of time off. As far as their duties are concerned, safety representatives must be allowed the time off that is necessary.
The functions of safety representatives, for which time off can be claimed, are set out in Regulations 4-7, SRSCR 77 and are to:
• investigate potential hazards and dangerous occurrences at the workplace and examine the causes of accidents;
• investigate employees’ complaints over health and safety;
• make representations to employers over safety matters;
• represent employees in consultations with Health and Safety Executive (HSE) inspectors;
• receive information from HSE inspectors;
• attend meetings of safety committees;
• inspect the workplace (provided reasonable notice in writing has been given to the employer);
• carry out fresh inspections where there have been considerable changes in conditions of work;
• carry out inspections following notifiable accidents, occurrences and diseases; and
• inspect any documents relevant to workplace health and safety, provided that reasonable notice has been given to the employer.
The LRD’s annual health and safety legal guide, Health and safety law 2010, provides further guidance on how these functions should be exercised.
Time off for training
The 2004 Workplace Employment Relations Survey showed that 63% of reps received some training to enable them to act as representatives — with those in larger workplaces (100 or more employees) being more likely to benefit from this. The TUC has researched the perceived utility of these courses. It showed that 96% of reps found training assisted them to carry out their duties as representatives — even though 15% of union reps were not paid for any of the time they took off to attend training.
Safety representatives have the right to a reasonable amount of time off to have training to perform their functions. Regulation 4(2)(b), SRSCR 77, says that the training has to be approved by the Health and Safety Commission.
Many of the problems faced by safety representatives in relation to time off are over training and whether or not it is suitable for the performance of their functions. In the case of Denys Rama v South West Trains [1997] EWHC Admin 976, the High Court ruled in favour of the right to paid time off for training.
Denys Rama was a safety representative and a member of the rail union RMT. He applied to attend a 10 day TUC stage 2 health and safety course (to take place within six months of the TUC stage 1 course). The company, consistent with its predecessor (British Rail’s) approach, declined to allow Mr Rama to have paid release. It argued that the training that the individual had received under the first course was sufficient to enable him to carry out his functions as a safety rep. The tribunal agreed, however, Mr Rama appealed. The High Court held that it was not for the employer to decide what courses were necessary, rather the issue was whether the request to attend the stage 2 course was reasonable and therefore the issue was remitted to the tribunal.
Denys Rama v South West Trains [1997] EWHC Admin 976
More recently, in the case of Duthie v Bath & NE Somerset Council EAT/0561/02, [2003] ICR 1405, the Employment Appeal tribunal (EAT) confirmed the approach in the Rama case:
Mr Duthie was a technician and a member of the UNISON public services union. He was appointed as a health and safety representative and attended both the Stage 1 and Stage 2 TUC health and safety courses. He then applied to go on the Stage 3 course. His request was turned down because his employers felt it was not necessary for him to have that level of expertise. An employment tribunal agreed with the employer, but Duthie appealed to the EAT. It held that the tribunal had used the wrong test. The issue, as far as training is concerned, is not whether training is necessary, but whether it is reasonable in all the circumstances.
Duthie v Bath & NE Somerset Council EAT/0561/02, [2003] ICR 1405
The rights to time off for members of European Works Councils
The law
The right to time off for members of European Works Councils and Special Negotiating Bodies (SNBs) is derived from the Transnational Information and Consultation of Employees Regulations 1999 (TICE Regs 99). The TICE Regs 99 are updated by the Transnational Information and Consultation of Employees (Amendment) Regulations 2010 (TICE Regs 10) which come into force from June 2011.
Regulation 25 of the Transnational Information and Consultation of Employees Regulations 1999 (TICE Regs 99) states that to perform their functions as a member, representative or candidate, there is a right to a reasonable amount of time off during working hours for:
• employees who are members of Special Negotiating Bodies (SNB) set up to negotiate for the establishment of a European Works Council (EWC);
• members of an established EWC; and
• information and consultation representatives.
Regulation 26 says that employees who are permitted time off under Regulation 25 have the right to be paid at their appropriate hourly rate.
Defining the duties of EWC members
The right to time off for members of a Works Council, or of bodies set up to negotiate the establishment of a Works Council, is not limited to trade union representatives. It equally applies in workplaces where there is no recognised union.
The function and operation of the negotiating bodies are set down in Part III ICE Regs 04. Agreement needs to be reached on what issues the Works Council will discuss (such as the organisation’s economic situation and likelihood of reorganisations), and when it will convene. In the event that negotiations are inconclusive, default arrangements will apply.
Time off for training
The ICE Regs 04 make no specific provision for time off for training and for this reason it is important that the workplace agreement covering the functioning of the Works Council makes express provision for time off for training.