9. Taking a claim over time off rights

The law

Sections 168, 168A, 169 and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 92) give union representatives, union learning representatives and union members taking part in trade union activities at an appropriate time, the right to go to a tribunal if the employer does not permit time off, or declines to pay for it.

Section 171, TULR(C)A 92 says the claim must be made within three months of the date when the failure occurred or, if not reasonably practicable, within “such further period as the tribunal considers reasonable”. Section 172, TULR(C)A 92 sets down the remedies where there has been a failure to give time off.

Regulation 11 of the Safety Representatives and Safety Committees Regulations 1977 (SRSC Regs 77), gives safety reps the right to present claims to tribunals where employers do not permit time off or to pay for it. Again there is a three-month time limit for complaints, unless it was not reasonably practicable to lodge the claim earlier (for example, if the employer’s breach has only just been discovered or the delay was caused by ill-health).

Regulation 27 of the Transnational Information and Consultation of Employees Regulations 1999 (TICE Regs 99), sets out the same three-month time limit for EWC members to take claims, unless not reasonably practicable. Regulation 29 of the Information and Consultation of Employees Regulations 2004 (ICE Regs 04), sets out that an individual has the right to complain to a tribunal if an employer has unreasonably refused an individual’s request for time off, or has failed to pay all or part of the sums due for the time taken off by him or her. There is a three-month time limit for complaints, unless it was not reasonably practicable to present the claim earlier.

Section 63C of the Employment Rights Act 1996 (ERA 96) gives employee representatives in unrecognised workplaces the right to take a claim to a tribunal within three months or within “such further period as the tribunal considers reasonable”.

Regulation 7(3) and Schedule 2 of the Health and Safety (Consultation with Employees) Regulations 1996 (H&SCE Regs 96), give safety representatives in unrecognised workplaces the right to take claims on the same basis as for employee representatives.

If an employer refuses time off in circumstances where you believe you have the right to the time, or if an employer refuses to pay for any time off you have taken, you can take a claim to the employment tribunal. The claim needs to be lodged within three months of the employer’s refusal of time off, but you do not need to show that you have suffered any financial loss (Skiggs v South West Trains Ltd [2005] IRLR 459).

You can also take a claim if you are victimised because you have exercised your rights to time off. Once you have established the basis of the victimisation claim, the onus is on the employer to prove that the action taken against you is not because you have asked for the time off.

Remedies

Section 172 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 92) states that if a claim on the basis of the denial of time off rights to union reps, union members or union learning representatives is “well-founded” (i.e. successfully proved) the tribunal will:

• make a declaration to that effect; and

• may award compensation.

Regulation 11, SRSC Regs 77, in respect of safety reps, makes similar provision.

If the tribunal finds in your favour it must make a declaration to that effect. However, it does not have to award compensation — unless you are claiming that your employer refused to pay you for the time off. If that is the case, and the tribunal finds in your favour it must award compensation to cover the pay you have lost.

If the tribunal does decide to exercise its discretion and award compensation, it will be for what the tribunal considers “just and equitable” (having regard to your employer’s default and the loss sustained by you). Compensation can include an amount for “injury to feelings”. In one trade union case, the tribunal was prepared to award £1,000 for injury to feelings.

As far as EWC members are concerned, the remedies are less comprehensive. Regulation 27 of the Transnational Information and Consultation of Employees Regulations 1999 (TICE Regs 99), says that where a claim is well-founded the tribunal must make a declaration to that effect.

However, it makes no provision for any award of compensation. Regulation 27(4) says that the tribunal will order an employer who has refused an EWC rep time off, the amount of money the rep would have been paid if the time off had not been refused. Similarly, if the employer has refused to pay the employee for any time off taken, the tribunal can award that amount. What it cannot do is make any other award of compensation.

Sections 61-63C of the Employment Rights Act (ERA 96) protect an individual who is (or is proposing to be) an employee rep during a TUPE or redundancy exercise. Where such a person is unreasonably refused the right to take time off or does not receive pay for taking time off, s/he will be entitled to complain to a tribunal. If his or her claim is upheld, the tribunal will make a declaration to that effect and award the individual the sums that s/he would have earned on those days.