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6. Reasonable time off
The law
The law only requires that the employer give a “reasonable” amount of time off. Section 168(3) of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 92) (in relation to time off for trade union duties) and section 170(3), TULR(C)A 92 (in relation to time off for trade union activities) state that both the amount of time off and the occasions on which time off may be taken, are “those that might be reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by Acas”.
Section 168A(8), (TULR(C)A 02) makes similar provision for time off for union learning representatives, as does Regulation 25 of the Transnational Information and Consultation of Employees Regulations 1999 (TICE Regs 99) for members of European Works Councils.
Regulation 4 of the Safety Representatives and Safety Committees Regulations 1977 (SRSC Regs 77) states that an employer has to give necessary time off for the performance of the functions of a safety rep (see Chapter 4) but reasonable time off for training. Regulation 7 of the Health and Safety (Consultation with Employees) Regulations 1996 (H&SCE Regs 96) makes similar provision for safety representatives in unrecognised workplaces.
Section 61 of the Employment Rights Act 1996 sets out that employee representatives and candidates for election as employee representatives, for the purpose of consultation over redundancies and/or business transfers, also have the right to a reasonable amount of time off.
Defining what is reasonable
The test of reasonableness is a subjective one. This means that there will be occasions when it would be legitimate for an employer to turn down a request for time off. The Acas Code of Practice on Time off for trade union duties and activities (2010), when assessing whether an employer has been reasonable (paragraph 42), says that account needs to be taken the:
• size of the employer (and the number of individuals working for it);
• production process;
• obligation to maintain a service to the public;
• requirement for safety and security; and
• difficulties in communicating with and representing atypical workers (such as part-timers, homeworkers and those on maternity leave).
There are a number of situations where it might be lawful and/or reasonable for an employer to refuse time off. For example if:
• the time off requested is not covered by any of the legal duties or activities covered by the law;
• the amount of time off which has been requested is deemed to be excessive;
• there are too many reps requesting time off at the same time;
• pressures of work;
• there are staff shortages;
• the amount of notice given is insufficient;
• the employee has already had a lot of time off; or
• factors specific to the individual making the request.
Time off not relevant to duties or activities
There is no express legal obligation on employers to give time off other than for the duties and activities laid down in the legislation.
The problem is often one of individual managers taking a decision that a particular request is not for relevant leave. Sometimes a decision on whether or not to allow time off is based more on the attitudes of particular managers.
This is one reason why it is important to have a procedure agreement on time off which sets out the circumstances where time off will be permitted. This removes the individual manager’s discretion, and means that representatives are clear about what time off they can and cannot have.
Excessive amounts of time off
If your agreement does not specify how much time off representatives can have, the test is whether the amount is reasonable. The Acas Code does not suggest what might be a reasonable amount of time off. It does, however, state that in considering each application on its merits, employers may also consider “the reasonableness of the request in relation to agreed time off already taken or in prospect”. This issue was addressed in one tribunal ruling in 1996 which gives an idea of what might be considered a reasonable amount of time.
Supermarket chain ASDA (now part of Wal-Mart), refused a request for time off to a union representative who had already taken 27 days for training, and 41 days for meetings. This had occurred over a three year period (around 22 days a year). The tribunal ruled that this was not excessive and that ASDA’s refusal to agree the request for further time off was unreasonable.
It may be reasonable for an employer to refuse any more time off, say over the period of a year, if you have already had a lot of time off. This could apply even if you have had a mix of paid and unpaid time.
In deciding whether an employer has been “reasonable” in refusing a request on this ground, the tribunals will look at a range of issues (including how much time off has already been conceded).
Clifford Wignall worked for British Gas. He was described by the judge in the EAT as “intelligent, hard-working and conscientious” and an “invaluable member of his union”. However, the fact that Wignall already had been permitted 12 weeks’ leave a year (a mix of paid and unpaid) made it not unreasonable for his employer to turn down a request for a further 10 days’ leave.
Wignall v British Gas [1984] IRLR 493
Factors specific to the individual rep
It is unlikely that your employer will be able to get away with refusing a request for time off on the grounds that there is a reason that is particular just to you. The case of Williams v Dover District Council COIT/10990/91 examined this issue.
John Williams applied for time off to take part in a union training course. His employers refused the request on the basis that he would not be staying in the job for much longer. The employment tribunal ruled that was not a valid reason for refusing the time off.
Williams v Dover District Council COIT/10990/91
Agreeing time off arrangements
Often the agreement will provide more time off for senior stewards and convenors than for ordinary representatives. This is in recognition of the fact that they will have more calls on their time. It may be useful to have the actual amount of time set out in the agreement. But it is always better that any figure quoted is for the minimum amount of time off that will be given, rather than the maximum.
Too many requests at the same time
It could be reasonable for an employer to turn down requests for time off if too many reps ask for it at the same time.
Obviously there will be circumstances where all the reps will need to be off at once (for example where they are all attending a reps’ meeting) but it is important to try to limit these occasions. The case of Thomas Scott & Sons (Bakers) Ltd v Allen [1983] IRLR 329 shows that there are circumstances where it would be reasonable for an employer to turn down a request, at least for paid leave.
Eleven shop stewards all asked for time off at the same time to attend a meeting to discuss the future of the industry. Their employer agreed that they could go but said they would not be paid since it was unreasonable that all should ask to attend.
The Court of Appeal, while conceding that the request for time off fell within the appropriate range of trade union duties, ruled that the employer had not been unreasonable in refusing the request for them all to be paid.
Thomas Scott & Sons (Bakers) Ltd v Allen [1983] IRLR 329
It is particularly important to try to spread the numbers taking time off for training.
Insufficient notice
The Acas Code says that when requesting time off reps “should provide management with as much notice as practically possible” giving details of the purpose of the time off (without compromising confidentiality), the likely location, as well as the timing and length of the time off required (paragraph 50). The case of Ryford v Drinkwater [1996] IRLR 16 is relevant:
Mr Drinkwater normally worked nights. While at work on his shift, he put in a late request for time off (so that he could get to a union meeting the next day). He then left work at midnight, without completing the shift. His employers refused to pay him and the Employment Appeal Tribunal (EAT) agreed they did not have to. Since his employers did not know about the request, they could not be said to have turned it down, and therefore had not refused him the right to time off.
Ryford v Drinkwater [1996] IRLR 16
If time off is required for training, the Code recommends that reps should “give at least a few weeks notice” (paragraph 52).
Staff shortages
This is one of the main reasons used by employers to refuse time off for union duties. A tribunal ruling in the case of Barnes v Scarborough Hospital Trust [1996] found that it was not reasonable for an employer to continually refuse requests for time off on these grounds:
Eric Barnes was “persistently and unlawfully” refused the right to time off because there were staff shortages in the hospital where he worked. The tribunal awarded Barnes nearly £6,000 to compensate for the fact that he had to spend his own time on trade union duties for which he should have had time off.
In the Barnes case, the tribunal also ordered the hospital trust to:
• provide sufficient funding and resources to ensure that, except in cases of unforeseen emergencies, union reps would be granted paid time off;
• prioritise requests for time off for union duties above other requests for time off; and
• maintain records of time off and review the arrangements with the union from time to time.
Barnes v Scarborough Hospital Trust [1996]
Pressures of work
Many reps are finding that, due to increased pressure at work, carrying out their roles as reps is becoming more difficult.
There will of course be occasions where an employer can reasonably refuse time off due to specific pressures of work. But these have to be of a temporary or emergency nature. The Acas Code accepts that there may be good reasons for turning down requests, for example “to ensure adequate cover for safety or to safeguard the production process or the provision of service” (paragraph 53).
However, an employer cannot use pressures of work as a permanent reason for refusing time off. In such cases the problem becomes one of insufficient staffing and, as the Barnes case (see above: Staff shortages) demonstrates, employers are required to take measures to address the issue of staff shortages, other than refusing time off.
Reps should also check whether the employer is allowing colleagues to take time off for other reasons. If this is the case it is more difficult for the employer to argue that pressure of work does not make it possible for reps to have time off for union duties.
Again, if an employer refuses paid time off for union duties due to pressures of work, but is willing to agree unpaid time off or that annual leave is taken instead, it is likely that a tribunal will rule that this is not reasonable.