Right to time off

Union lay officials, including shop stewards, staff reps and branch secretaries of recognised unions, have the right to time off with pay (based on average hourly earnings) to carry out trade union duties (section 168, TULRCA).

If an employer refuses a right to time off in circumstances where it would have been reasonable to provide the right, the union representative can take a claim to an employment tribunal. The tribunal can award financial compensation, even in cases where the representative has not incurred any financial loss (Skiggs v SW Trains ([2005] IRLR 459)).

Trade union duties are those concerned with negotiation with the employer over what are termed section 178(2) matters (terms and conditions, recruitment, suspension, dismissal, work allocation, discipline, union membership, time off facilities and procedures). Alternatively, with the employer’s agreement, they can be for functions related to these matters but which are not within the scope of negotiations. To benefit from the time-off rights, the union must be recognised by the employer for the section 178(2) matter for which the time off is required.

Trade union officers have the right to time off for training, again if related to section 178(2) matters. This right is qualified by the words “reasonable in all the circumstances”. The Acas Code of Practice on Time off for trade union duties and activities, 2010 gives as examples of “reasonableness” the employer’s need for safety and security at all times, the size of the organisation, the production process and the need to maintain a service to the public. There is no service qualification for this right.

Employee representatives appointed or elected for consultation on redundancy and business transfers also have the right to time off for training in their duties (see Chapters 11 and 12). An employer who persistently refuses time off, arguing that there are staff shortages, is likely to be in breach of the law where no efforts are made to overcome the shortages.

The EAT has held that time off is not rigidly limited to the section 178(2) matters since an employer acting reasonably has to take account of factors such as the history, timing and agenda of the meeting in question (London Ambulance Service v Charlton [1992] IRLR 510).

Part-time workers should be paid for the same number of hours as a full-time employee when attending union training. A ruling of the European Court in the case of Arbeiterwohlfahrt der Stadt Berlin v Botel ([1992] IRLR 423) held that an employee whose working day is shorter than that of other employees, but who takes part in a course with hours in excess of the employee’s contractual hours, should be paid for the hours on the course at the same level as the full-time workers. This interpretation was also adopted by the ECJ in the case of Kuratorium v Lewark ([1996] IRLR 637.

All members of recognised unions, not just representatives, have the right to reasonable time off without pay to take part in trade union activities, except for industrial action (section 170, TULRCA). These would include shift-workers attending trades council and union branch meetings. Circumstances where the time off rights have been held to apply to workplace union representatives include attendance at trade union meetings and at a conference dealing with new laws on working conditions. However, the EAT ruled, in Luce v LB Bexley [1990] IRLR 422, that there is no right to time off to attend a lobby of Parliament to protest over legislation not significantly specific to the workers concerned.

An employee can bring a claim relating to time off to a tribunal, but only if a specific request for time off has been denied (Ryford v Drinkwater [1996] IRLR 16). The claim must be presented to a tribunal within three months (section 171, TULRCA). If the claim is successful, the tribunal will make a declaration of the employee’s rights and may award “just and equitable” compensation.

Employee representatives in workplaces with no recognised union who are elected for consultation on redundancy and business transfers have rights to time off with pay for their duties (see Chapters 11 and 12).

Union learning representatives also have the right to a reasonable amount of paid time off to carry out their duties. These would include addressing learning or training needs, providing information and advice and promoting the value of learning. They also have the right to time off for training to understand the different methods for identifying learning needs, drawing up learning plans and working with employers to promote the value of learning.