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 where a union is recognised is known as "facility time".
There is normally a negotiated facility agreement, recording the rules for time off in that workplace. 


It is very important to keep a careful record of facility time, how the time is used and for what purpose. The main categories that qualify for statutory time off include: 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. (This should include time spent consulting with the member, preparing for the meeting and any appeal and attending the meeting.) Some workplaces also have agreements in place for time off for equality reps and green reps. Unions need to be able to justify the time that is provided, with supporting data. Record keeping must comply with data protection laws (see Chapter 15). 



Many public sector employers have formal statutory reporting duties for union facility time, summarised on pages 155-158. 


There is an Acas statutory Code of Practice on Time off for trade union duties and activities. The Code must be taken into account by tribunals when considering a claim involving 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” an employer’s need for safety and security at all times, organisation size, the production process and the need to maintain services to the public. An employer who persistently refuses time off by claiming staff shortages is likely to breach 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. 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 time off, the union must be recognised 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. 





Time off is not necessarily 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 where a union is recognised also have rights to paid time off for statutory information and consultation duties concerning collective redundancies and TUPE transfers. So do elected or appointed employee representatives in a workplace without a recognised union (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”. 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 suitable online training is relevant to the reasonableness of a time off request. The Acas Code describes online courses as “best as an additional learning tool” rather than a replacement for classroom-based training, but the judge in Bennett noted that online training has improved since then. Whatever form the training takes, 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 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 with a recognised union 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 with a recognised union have separate rights under the Safety Representatives and Safety Committees Regulations 1977 (SRSCR) to paid time off in 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 legal guide, Health and Safety Law at Work.





Time spent on union duties in working hours, for example, attending safety meetings or pay negotiations with the employer’s agreement, is working time (Edwards & Morgan v Encirc Limited [2015] UKEAT/0367/14/DM) (see Chapter 4). As the EAT noted in Edwards, a union or safety rep attending meetings 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 Edwards, 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. 





The Acas Code includes guidance on 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 were introduced under the TUA 16. They are outlined on page 156.