7. The right to be paid

The law

Section 169 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 92) says that where an employer permits time off for a union representative’s duties or for carrying out the duties of union learning representatives, there is a right to be paid. There are different ways of calculating what is to be paid, dependent on how wages are normally calculated. These are:

• if the employee’s pay does not vary with the amount of work done, then the employee is paid as if s/he had worked;

• if the employee’s pay does vary with the amount of work done, the calculation is averaged to obtain an average hourly rate (if necessary by reference to the earnings of other comparable employees — or if there are none, simply by assessing what is reasonable).

According to the Workplace Employment Relations Survey around 90% of union reps received paid time off to carry out their duties as representatives. Interestingly, the more work a rep carries out, the more likely to s/he is to be paid by his or her employer — 95% of those performing reps’ duties for five hours or more per week, were paid by the employer.

Regulation 4(2) of the Safety Representatives and Safety Committees Regulations 1997 (SRSC Regs 77) and Schedule 2 of the Regulations set out that where the amount an employee is normally paid does not vary, safety representatives should be paid during time off as if they had worked. Where it does vary it should be based on the employee’s average hourly earnings, or on the average hourly earnings of comparable workers.

Regulation 26 of the Transnational Information and Consultation of Employees Regulations 1999 (TICE Regs 99), also gives a right to paid time off to members of European Works Councils (EWCs) and Special negotiating Bodies (SNBs).

The wording of the Regulations differs somewhat from that in section 169, TULR(C)A 92 although its impact is similar. Regulation 26 states that to calculate what is due to the employee, the employer should take their week’s pay divided by the number of hours they work in a week. However, where hours or earnings vary from week to week the rate is calculated by:

• the total number of hours worked in a 12 week period divided by 12; or

• where the employee has not worked for 12 weeks, then a number “which fairly represents the number of normal working hours in the week” is used, taking account of the hours the employee could have been expected to work or the average number of normal working hours of comparable employees.

Section 62 of the Employment Rights Act 1996 (ERA 96) gives a right to paid time off for employee representatives or the candidates for election for consultation over redundancies and/or business transfers. The amount that should be paid is calculated in the same way as for the TICE Regs 99 (see above).

Schedule 1 of the Health and Safety (Consultation with Employees) Regulations 1996 (H&S(CE)Regs 96), makes similar provision to that for safety reps as is in the SRSC Regs 77 (see above).

Regulation 28 of the Information and Consultation of Employees Regulations 2004 (ICE Regs 04) specify the pay that employee representatives should receive. The Regulations refer to an appropriate hourly rate — the same formulation as under the Employment Rights Act 1996.

All workplace representatives have the right to be paid for all reasonable time off, other than where the request is for time off for trade union activities (see Chapter 2: Trade union activities).

The right to be paid extends to union learning representatives, health and safety representatives, members of EWCs and SNBs for the establishment of EWCs and employee representatives in non-recognised workplaces, provided they are carrying out their relevant duties at the time.

Normally, it will be possible to calculate this average by looking at what the employee was earning when not carrying out her/his representative duties. However, there will be cases where it is not possible to make this calculation, for example because the employee is on 100% facility time and therefore has no normal earnings to be averaged. In these cases the average is calculated either:

• by reference to the average hourly earnings of other workers in comparable employment with the same employer;

• if there are no comparable employees; or

• by calculating a figure of average earnings reasonable in the circumstances. This could, for example, be calculated by averaging the wages of all those who the individual represents.

A similar calculation is made in relation to the time off rights of safety representatives, including representatives in unrecognised workplaces.

These rights to be paid, do not affect any contractual rights to pay the employee might have. However, the employer can offset any pay made for time off rights against any contractual liability to pay wages. This provision, in section 169(4), means that a rep would not have the right to double payment.

Overtime pay is not normally included in the calculation of average pay. This is because overtime is rarely contractual in that not only would the employee have to work the overtime if requested, but to qualify as such the employer would always have to offer it regardless of whether there was a need for it or not.

Since very few contracts give this kind of cast iron guarantee of overtime, the courts can be reluctant to include it in the calculation of normal average earnings.

Payment for hours that would have been worked

The right to be paid only covers those hours when the employee would have worked. This raises particular issues for shift workers and for part-time workers. The Acas Code of Practice on Time off for trade union duties and activities (2010) (paragraph 58) recommends that even in cases where there may be no legal right to be paid “it would be sensible” for agreements to make clear what the payment arrangements might be. This is particularly important where workers are undertaking their duties outside of their normal work hours.

For example, employee reps at Ineos Manufacturing who have to attend meetings or undertake training outside of normal working hours, are entitled to four hours’ overtime pay for any event lasting up to four hours, and eight hours overtime pay for an event lasting between four and eight hours.

Shift workers

Since the law only says that a person should be paid for the hours they would normally have worked, shift workers can lose out if meetings are held at times when they would not normally be working. The case of Hairsine v Kingston upon Hull City Council [1992] IRLR 211, [1992] ICR 212, considered the pay rights of shift workers when carrying out their union duties. The ruling applies to all paid time off rights for representatives.

The Hairsine ruling shows how important it is to have an agreement which sets out the rights of shift workers who otherwise could lose out on pay and time off. The EAT, in making its ruling suggested that agreements include one or more of the following:

• re-arranging shifts so as to fit in better with the time the rep would be on the training course;

• taking account of travelling time, if the rep has to travel some distance to attend the course;

• allowing a rep who works nights, the night shift off before a course begins; or

• allowing the next night shift off after the course has ended, particularly if the employee works with dangerous machinery.

Part-time employees

Part-time employees have the same rights to act as union representatives as do full-time workers. An employer could not refuse time off rights to a representative merely on the basis that they work less than full-time hours. Issues do arise, however, over the pay rights of part-time workers where, as with shift workers, their need for time off (for example, to attend meetings or to take part in union training) does not fall during their working hours.

In deciding what their pay rights should be, the courts also have to take account of discrimination law. This is because part-time workers’ rights overwhelmingly affect of women workers, so any detrimental treatment of part-time workers potentially amounts to sex discrimination.

The leading case of Arbeiterwohlfahrt der Stadt Berlin v Botel [1992] IRLR 423, a ruling of the European Court of Justice (ECJ), looked at what rights a part-time worker should have.

Initially, the UK tribunals seemed reluctant to follow the Botel ruling. In the case of Manor Bakeries v Nazir [1996] IRLR 604 the Employment Appeal Tribunal (EAT) rejected a claim from a part-time worker attending her union’s annual conference that she should be paid at the same rate as full-time colleagues, also attending the conference. The EAT distinguished her claim from the Botel ruling by saying that while a training course was a “species of work” attending a union conference was not.

In the later case of Davies v Neath Port Talbot [1999] IRLR 769 the EAT did follow the Botel ruling.

Union activities

In general there is no right to paid time off for trade union activities. However, the Acas Code (paragraph 41) says there are circumstances where employers “may want to consider payment”. It gives two examples:

• to make it more likely that meetings will be representative; and

• to ensure that employees can make use of the services of a union learning representative.