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”.


Acas has produced a Code of Practice on Time off for trade union duties and activities, which was updated in 2010. The Code is statutory, meaning that 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. Paid time off for union reps in workplaces where unions are recognised is known as “facility time”.


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. The tribunal can award financial compensation even if the rep has not lost out financially (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. Alternatively, with the employer’s agreement, time off can be for functions that relate to these matters but which are outside the scope of negotiations. 


For there to be 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 (see above).

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;


• 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 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).


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


Employers must also allow trade union reps paid time off for industrial relations training on the section 178(2) matters. Again time off must be “reasonable in all the circumstances”. The training must be approved by the TUC or the official’s own trade 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. 


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. 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 also have the right 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 the 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. See the LRD booklet, The skills system at work, 2016 for more information.


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, often called the “Brown Book”, and Guidance — Consulting workers on health and safety. Information on the rights and functions of union safety reps can be found in LRD’s annual publication Health and Safety Law.


Time spent on union duties during working hours, for example, attending meetings at the workplace with the employer’s agreement about health and safety or pay, is working time (Edwards & Morgan v Encirc Limited [2015] UKEAT/0367/14/DM) (see Chapter 4). Under regulation 2(1), Working Time Regulations, time is “working time” if the worker is working, at the employer’s disposal and carrying out their activities or duties. A worker attending meetings as a union or safety rep is working, ruled the EAT in Edwards, 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 eleven 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 also includes guidance on the facilities the employer should provide, and important information about the employer’s confidentiality and data protection obligations regarding trade union communications (Code, para 49). Normally there will be a negotiated facility agreement in place at the workplace, setting out the rules on time off.


Paid facility time has been under sustained attack under the current government, especially in the public sector. Further restrictive measures, discussed later in this Chapter, are included in the Trade Union Act 2016. 


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. The EAT ruled, in Luce v LB Bexley [1990] IRLR 422, that there was no right to time off to attend a lobby of Parliament to protest over legislation not significantly specific to the workers concerned. 


The Acas Code on Time off for union duties and activities gives some examples of “activities”, which include 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.


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. 


As always, there are tribunal fees. The issue fee to enforce the statutory right to time off for trade union duties and activities is £160. The hearing fee is a further £230. Acas Early Conciliation applies to all tribunal claims except applications for interim relief. See Chapter 13 for more information on tribunal fees, “Help with Fees” and Acas Early Conciliation.


Union reps have the right to reasonable paid time off during working hours for the purpose of accompanying another of the employer’s workers to a discipline or grievance meeting (see Chapter 10), 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: Right to be accompanied). The companion must be given reasonable time off for preparation and training.