5. The rights of reps in workplaces without recognition

The law

Section 61 of the Employment Rights Act 1996 (ERA 96) says that an employee who is an employee representative for the purpose of consultation on redundancies or business transfers or who is a candidate for such a post has the right to reasonable time off during working hours. The right to time off is to:

• perform the functions of an employee representative; and

• to undergo training to perform such functions.

The right only applies to employees, that is those working under a contract of employment.

Section 62, ERA 96 says that the time off is paid at the “appropriate hourly rate” (that is at the usual rate s/he receives per hour). If the individual’s hours vary, then the rate should be calculated by analysing his or her average earnings over the previous 12 weeks).

If an employee is refused time off as set down in section 61, ERA 96 or is not paid (or fully paid) there is a right to take a claim to an employment tribunal. Any amount that has been paid by the employer to the individual, will be offset by a tribunal against the full sum that is due.

Under Regulation 4 of the Health and Safety (Consultation with Employees) Regulations 1996 (H&SCE Regs 96), where there is no recognised union, employers can choose to consult with elected representatives. These representatives also have, under Regulation 7, the right to time off for training and to perform their functions (the cost of the course — as well as travel and subsistence expenses — to be met by the employer).

Under Regulation 26 of the Offshore Installations (Safety Representatives and Safety Committees) Regulations 1989, employers must permit safety reps paid time off from work on an offshore installation to perform the functions of a safety rep and undergo training (the costs of which are met by the employer). Also, under Regulation 23 employers must make accommodation, communication tools, and office equipment available to reps.

Under Regulations 27 and 28 of the Information and Consultation of Employees Regulations 2004, negotiating reps, and information and consultation reps, are entitled to take a reasonable amount of paid time off to perform their duties as reps.

Where the employer has 1,000 or more staff working in at least two member states (employing at least 150 staff at those locations) the Transnational Information and Consultation of Employees Regulations 1999 (TICE 99) will apply. Under Regulation 25, TICE 99, Special Negotiating Body (SNB) members, European Works Council members, information and consultation reps, plus candidates for such posts, are entitled to paid time off to perform relevant duties.

Under the Transnational Information and Consultation of Employees (Amendment) Regulations 2010, which come into force in June 2011, European Works Council members will be entitled to have paid time off to attend training (the course costs also being met by the employer).

Under Regulations 39 and 40 of the European Public Limited-Liability Company Regulations 2004, SNB members, representative body members, information and consultation reps, supervisory and administrative employees, plus candidates for such posts, are entitled to paid time off to perform relevant duties. There is no express right under these regulations to time off for training or access to facilities.

Under Regulations 39 and 40 of the European Cooperative Society (Involvement of Employees) Regulations 2006, SNB members, representative body members, information and consultation reps, supervisory and administrative employees, plus candidates for such posts, and participants in general/section/sectorial meetings are entitled to paid time off to perform relevant duties. There is no express right under these regulations to time off for training or access to facilities.

Additionally, reps may be appointed to negotiate changes to pension schemes, working time agreements, parental leave entitlement, and arrangements for successive fixed-term contracts. Under, respectively, paragraph 4 of the Schedule to the Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006), sections 45A and 101A of the Working Time Regulations 1998, Regulation 19 of the Maternity and Parental Leave Regulations 1999, Regulation 7 of the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, such individuals are protected from suffering a detriment related to their being a rep.

Defining the duties of employee representatives

The result of a ruling of the European Court of Justice in 1995 saw the then Conservative government obliged to amend the law on consultation in redundancies and business transfers to cover situations where there was no recognised union.

This was because EU law insisted that workers be consulted through their representatives when these kinds of organisational changes were proposed. In the UK at the time, employers could avoid having to consult simply by not recognising a union. This was because the law only required consultation where there was a recognition agreement.

At around the same time the government introduced new rights to information and consultation on health and safety for workplaces without union recognition where there were no union safety representatives.

Section 188(1B) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 92) gives the employer the right to decide on the composition of any body of employee representatives with whom consultation will take place, in the absence of union recognition. Section 196, TULR(C)A 92 defines employee representatives as those:

• appointed or elected by employees not just for the sole purpose of consultation on a specific redundancy or transfer situation and with the authority of employees to receive information and be consulted;

• selected by affected employees, purely for the purpose of specific consultation.

The difference between these two types of employee representative is that in the case of the former, they are members of a permanent consultation body like a works council or staff consultative committee, but do not have to have gone through an election process to hold their position. In the latter, their term of office may last only as long as the specific consultation for which they were elected.

The employers’ legal obligation is only to invite affected employees to elect representatives. If the employees choose not to do so, the obligation to consult collectively does not apply. If there is an election it must be carried out in accordance with section 188A, TULR(C)A 92.

Candidates for election have the right to “reasonable time off” during working hours to present their candidature. This should include the right to time off to meet with the employees who will be voting and to lobby and canvas for their support.

It could also include time off to hold hustings when employees get the opportunity to meet with all of the candidates at the same time. They also have the right to a reasonable amount of time off for training. This could include training in representative’s skills or indeed training on the law covering the procedure for election.

Although employees themselves do not have the right to paid time off to attend such meetings, the recommendation in the Acas Code of Practice in relation to union meetings applies equally to meetings with employee representatives. This says (paragraph 41) that “employers may want to consider payment in certain circumstances, for example to ensure that workplace meetings are fully representative”. Employee representatives and candidates should use this recommendation to get paid time off for employees, particularly in the run up to elections.

The fact that employers have to invite their employees to elect representatives in some circumstances can provide the basis for arguing for the permanent establishment of an employee forum for information and consultation. Under the EU directive on information and consultation (in force since March 2005) if sufficient numbers of employees request it, a permanent employee forum will have to set up by an employer.

Once elected or appointed to a permanent consultative body, employee representatives have similar rights to time off as would apply to union representatives in recognised workplaces, although the right will be limited to time off in connection with their duties in relation to information and consultation. Rights to time off should include:

• meetings with outside advisors (including union officials);

• preparation for consultation;

• consulting with affected employees and receiving their views;

• reporting back to affected employees the outcome of consultation; and

• time off for training.

Under Regulation 3 of the Health and Safety (Consultation with Employees) Regulations 1996 (H&SCE Regs 96), employers have to consult safety representatives on:

• the introduction of measures which substantially affect the health and safety of employees; and

• the arrangements for appointing or nominating safety representatives;

• the health and safety information they are entitled to receive by statute;

• the organising of any training that employees will receive; and

• the consequences for the health and safety of employees of the introduction of new technologies.

Regulation 7 (H&SCE Regs 96) says that these representatives have to be given the necessary time off with pay during working hours to perform their functions (this includes the cost of training — as set out below). It also says that candidates for election as a representative of employee safety have the right to reasonable paid time off to perform their functions as a candidate.

Time off for training

Unlike the law covering union representatives, there is no definition in the legislation as to what training might be appropriate. Section 61 of the Employment Rights Act 1996 (ERA 96) merely says that the amount of time off must be “reasonable”. Employee representatives, as a minimum, would need training in the law on redundancies and business transfers so that they can properly perform their functions.

There are good arguments for this training being independent of the employer, because the proper performance of the representative’s functions is better achieved if the representative has independent information.

The fact that the law provides for this in cases of union representatives is good grounds for arguing for a similar right for employee representatives. The case of Shaw v Interface Europe COIT/1800435/98 (see Chapter 2: Time off for training) makes it clear that employer-organised training is insufficient for the proper performance of the representative’s role.

Regulation 7(1), H&SCE Regulations 96 says that safety representatives appointed or elected under the 1996 Regulations must be provided with training in their functions “as is reasonable in all the circumstances”. The employer has to meet all “reasonable costs” in connection with the training, including travel and subsistence expenses.

Accompanying workers at disciplinary or grievance hearings

In workplaces without union recognition there is still a right to a reasonable amount of paid time off to accompany workers to disciplinary or grievance hearings. This right can be exercised by any work colleague chosen by the employee who has been called to attend the disciplinary hearing or who has asked for a hearing on a grievance. There is no right to time off for training for this role.

It is likely that representatives on permanently established information and consultation bodies will frequently find themselves asked to take on this role. If they are, they should have the right to time off to:

• meet in advance with the employee who is being disciplined (or taking a grievance);

• meet with other employees (if necessary) to help establish the background to the case;

• attend the hearing; and

• discuss its outcome with the employee after the hearing has ended.