Rights to time off


Paid time off for union duties




Union lay officials, including shop stewards, staff reps and branch secretaries of independent unions recognised by the employer have the right to time off with pay, based on average hourly earnings, to carry out trade union duties (section 168, TULRCA). There is no service qualification. The amount of time off must be “reasonable in all the circumstances”. Paid time off for union reps in workplaces where a union is recognised is known as "facility time".
There is normally a negotiated facility agreement in place, setting out the rules for time off in that workplace. 


It is very important to keep a careful record of the amount of facility time, how the time was used and the category of facility time, such as safety rep duties; learning and skills; collective bargaining; information and consultation; consulting on redundancies, transfers and reorganisations; and representing members in disciplinary, grievance and performance management meetings (which should include time spent consulting with the member, preparing for the meeting and any appeal and attending the meeting). Unions need to be in a position to justify the time provided. Record keeping must comply with data protection laws (see Chapter 15). 


In the public sector, there are formal statutory reporting obligations, summarised on pages 147-149.



Acas has produced a Code of Practice on Time off for trade union duties and activities, updated in 2010. The Code is statutory, so it must be taken into account by tribunals when considering a claim involving the time off rights. Acas has also published non-statutory guidance — Trade union representation in the workplace — a guide to managing time off, training and facilities. Both documents are on the Acas website. 



The Acas Code gives as factors relevant to “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. An employer who persistently refuses time off by claiming staff shortages is likely to be in breach of the law if no efforts are made to overcome those shortages.




If an employer unreasonably refuses paid time off, the union rep can bring a tribunal claim. Compensation can be awarded even if the rep has not lost out financially, and the tribunal can use its award to reflect disapproval of the employer’s behaviour (Skiggs v SW Trains [2005] IRLR 459).


Trade union duties are duties concerned with negotiation with the employer over what are often called the “section 178(2) matters”: terms and conditions or physical conditions of employment, recruitment, suspension, dismissal, work allocation, discipline, union membership, time off facilities and procedures. With the employer’s agreement, time off can also be for functions that relate to these matters but which are outside the scope of negotiations. 




To have a legal right to the time off, the union must be recognised by the employer for the section 178(2) matter for which the time off is sought.



The Acas Code gives examples of reasonable time off, including time off to:



• prepare for negotiations, including attending relevant meetings;




• inform members of progress and outcomes;
and



• prepare for meetings with the employer over issues where the union has representation rights. 




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




Union reps in workplaces where a union is recognised also have the right to paid time off to carry out statutory information and consultation duties concerning collective redundancies and TUPE transfers. The same is true of elected or appointed employee representatives in a workplace where a union is not recognised (see Chapters 11 and 12).




Employers must allow union reps paid time off for industrial relations training on the section 178(2) matters. Time off must be “reasonable in all the circumstances”. The training must be approved by the TUC or the official’s own union (section 168(2), TULRCA). The Acas Code says that union reps are “more likely to carry out their duties effectively if they possess skills and knowledge relevant to their duties” and recommends releasing them for initial training in basic representational skills as soon as possible after their election or appointment, bearing in mind that suitable courses may be infrequent. 


In Bennett v London Borough of Camden, Central London ET Case No. 2200243/2017, the tribunal suggested that the availability of a suitable online course as an alternative to face-to-face training is a relevant consideration when deciding on the reasonableness of a time off request. The tribunal observed that online training has become more sophisticated since the Acas Code, which describes online courses as “best as an additional learning tool” rather than a replacement for classroom-based training. In any event, whether training is on or off-line, reasonable time off must be given during working hours. 




Part-time workers should be paid for the same number of hours as a full-time employee when attending union training. A part-time worker who takes part in a course with hours in excess of their contractual hours should be paid for the hours on the course at the same level as the full-time workers (Arbeiterwohlfahrt der Stadt Berlin v Botel [1992] IRLR 423, followed in Kuratorium v Lewark [1996] IRLR 637). The position may not be the same when attending trade union conferences (Manor Bakeries Limited v Nazir [1996] IRLR 604).




Union learning reps (ULRs) in a workplace where the union is recognised are entitled to a reasonable amount of paid time off to carry out their duties (section 168A, TULRCA, section 43, Employment Act 2002). These include addressing learning or training needs, providing information and advice and promoting the value of learning, preparing and consulting with the employer. They also have the right to time off for training to understand different methods for identifying learning needs, drawing up learning plans and working with employers to promote the value of learning. There is guidance in the Acas Code. 




Union safety reps in workplaces where unions are recognised have separate rights under the Safety Representatives and Safety Committees Regulations 1977 (SRSCR), to paid time off during working hours to perform their functions (regulation 4(2)(a), SRSCR). The HSE has produced a separate Code (the “Brown Book”), and guidance, Consulting workers on health and safety. For more information, see LRD’s annual publication, Health and Safety Law at Work.




Time spent on union duties during working hours, for example attending safety meetings or pay negotiations at the workplace with the employer’s agreement, is working time (Edwards & Morgan v Encirc Limited [2015] UKEAT/0367/14/DM) (see Chapter 4). As the EAT confirmed in Edwards, a worker attending meetings as a union or safety rep during working hours with the employer’s consent is working because they are engaged in activities for the employer’s benefit — helping to promote good industrial relations and a safer workplace — deriving from the employment relationship and at a time agreed by the employer. In that case, it was a detriment in breach of section 146, TULRCA to refuse two reps, who were shift workers, an 11-hour rest break after a union meeting. A recognition or facility agreement can be a “relevant agreement” for the purposes of the WTR.




The Acas Code includes guidance on the facilities the employer should provide, and on the employer’s confidentiality and data protection obligations regarding trade union communications. 


Paid facility time has been under sustained attack since 2010, especially in the public sector. New rules on quantifying and reporting facility time in the public sector, introduced under the TUA 16, are outlined on page 148. 




Unpaid time off for union activities




All members of recognised unions, not just their representatives, have the right to reasonable time off without pay to take part in trade union activities, except for industrial action (section 170, TULRCA). This would include shift workers attending trades council and union branch meetings. In Luce v LB Bexley [1990] IRLR 422, the EAT ruled that there was no right to time off to attend a lobby of Parliament to protest over legislation not specific to the workers concerned. 




The Acas Code on Time off for union duties and activities gives some examples of “activities”, such as attending workplace meetings for reps to report on the outcome of negotiations, meeting full-time officers to discuss relevant issues, voting in union elections and accessing the services of a union learning rep.




Time off for representation duties 


Union reps have the right to reasonable paid time off in working hours to accompany another of the employer’s workers to a discipline or grievance meeting, as long as they have been certified by their trade union as capable of acting as a companion (section 10(6), Employment Relations Act 1999). The companion must also be given reasonable time off for preparation and training. For information on the right to be accompanied, see Chapter 10, page 362.



Tribunal claims about time off rights




An employee can bring a tribunal claim relating to time off, but only if a specific request for time off has been denied (Ryford v Drinkwater [1996] IRLR 16). The claim must be brought within three months (section 171, TULRCA). If successful, the tribunal will make a declaration of the employee’s rights and may award “just and equitable” compensation. Acas Early Conciliation (EC) applies unless there is an application for interim relief (see page 157). See Chapter 14 for more information about Acas EC. 


Government attacks on public sector facility time 




Union facility time has been under consistent attack since 2010, particularly in the public sector. Levels of hostility were stepped up following the 2015 election.



In October 2012, the government severely limited the facility time of civil service trade union reps in England, including a complete ban on promotion for full-time reps. The then Cabinet Office minister, Francis Maude, boasted that since 2010, his government had slashed the number of full-time taxpayer-funded union officials by over 90. By the second quarter of 2014, there were only 13 reps on full facility time in government departments, compared with 200 in November 2011. The number has since fallen to single figures. The number of general reps has also declined dramatically.




In England, facility time is also under attack in local government, with established collective agreements being undermined. The Local Government Transparency Code 2015 requires councils to publish detailed annual figures on union reps and trade union facility time, including:



• the number of staff (absolute number and full-time-equivalent (FTE)) who are union reps (including general reps, learning and health and safety reps);




• the number who devote at least 50% of their time to union duties;




• the names of all trade unions represented in the authority;




• a basic estimate of “spending on unions” (the number of FTE days spent on union duties by authority staff that spent the majority of their time on union duties, multiplied by the average salary); and




• a basic estimate of “spending on unions” as a percentage of the total pay bill (the number of FTE days spent on union duties by authority staff who spent the majority of their time on union duties, multiplied by the average salary and divided by the total pay bill).


The Code applies only to local councils in England.



An even more punitive approach is taken in the Trade Union Act 2016 (section 13, TUA 16), which empowers ministers to make regulations to require public sector employers (and private and voluntary sector employers mainly funded by the taxpayer) to publish detailed information about facility time.
This led to new regulations, the Trade Union (Facility Time Publication Requirements) Regulations 2017, which became law on 1 April 2017. The regulations apply to public sector bodies only, not private or voluntary sector bodies providing public services. They were enacted without consultation with either the TUC or public sector employers. They require public sector employers with more than 49 FTE employees in any seven of the 12 months starting on 1 April of each year to publish the following information on their website and in their annual report:


• number of employees who were union officials (reps and shop stewards) during the relevant period (including FTEs);



• percentage of time spent on facility time (0%, 1%-50%, 51%-99% or 100% of working hours);


• percentage of total pay bill spent on facility time; and



• number of hours spent by relevant union officials on paid trade union activities as a percentage of total paid facility time hours.



The first reporting period ran from 1 April 2017 to 31 March 2018. Promised guidance on the new regulations has not yet been published.



The TUA 16 also contains a power to impose a cap on the total amount of paid facility time for any public sector employer, as a percentage of the total pay bill. The power can only be exercised after reviewing three years of data on facility time, following consultation with the relevant employer. Twelve months’ notice must be given before imposing any cap.




In Wales, the Welsh Assembly has formally disapplied the facility time provisions of the TUA 16 in so far as they apply to devolved public services in Wales, that is, the NHS, education, local government and the fire services. The Trade Union (Wales) Act 2017 (TUWA) became law in September 2017. Legislators in Wales view the provisions on facility time as “draconian” and likely to lead to a “confrontational relationship between employers and the workforce”, damaging public service delivery.


In Scotland, the Scottish government has issued important new guidance on facility time as Law at Work goes to press. See page 29 for more information.