LRD Booklets August 2010

Time off for trade union duties and activities - a legal guide

Introduction

Around half of all workplaces and two-thirds of all employees have access to a union or workplace representative or are covered by some sort of representative body. However, for union and employee reps to properly represent their members at work they need time off to carry out their duties and activities as well as for suitable training for their role.

The right to time off was first established over 30 years ago when the then Labour government introduced a new law, the Trade Union and Labour Relations Act 1974, which set down the circumstances under which the right to time off could be exercised. However, in the 1980s the Thatcher Conservative government restricted the right to time off, by defining more narrowly the range of matters over which it could be claimed.

In recent years, rights to time off have been expanded, mainly as a result of two major developments. The first is the enactment of European laws giving employee representatives rights to be informed and consulted, for example under the Information and Consultation of Employees Regulations 2004. The second is following the creation of the role of union learning representatives (ULRs).

ULRs are responsible for encouraging learning and training at work. Since April 2003 they have had the right to paid time off to carry out their duties. This booklet also covers the rights to time off of members of European Works Councils, under the Information and Consultation of Employees Regulations, and under the Trade Union and Labour Relations Consolidation Act 1992, as well as dealing with the rights of safety representatives to time off.

A campaign in the right-wing press over the amount of time spent by public sector workers on facility time has resonated with the current Conservative-Liberal Democrat coalition government and there is recent evidence to suggest that time off for trade union duties is being put under pressure by some employers in a number of ways. These include attempts by employers to renegotiate current agreements or interpret existing agreements less favourably. Therefore, more than ever, it is important to know precisely where reps stand in regard to time off for trade union duties.

This booklet explains all of the legal rights that trade union and employee representatives have to time off and the circumstances when they will be paid. It uses a new Acas Code of Practice, issued in January 2010, to explain how the rights should be exercised. Although the Code does not of itself create new law, in paragraph 7 it states that it is admissible in evidence at a tribunal and can be taken into account in deciding whether or not the right to time off has been exercised in accordance with the law.

This booklet covers all of the legal rights to time off for workplace representatives. The first chapter deals with the general right to time off. Chapter 2 looks specifically at the rights to time off for union representatives in workplaces where the union is recognised. It explains who gets time off and the circumstances in which it should be permitted. It also explains the differences between trade union duties that are paid and trade union activities for which there is no right to payment, even though there may be a right to time off.

Chapter 3 deals with rights to time off for Union Learning Representatives. Chapter 4 covers the rights of safety representatives together with the rights of members of European Works Councils. Chapter 5 covers the rights of representatives in workplaces without recognition — even where there is no union recognition there is still a right to paid time off for information and consultation on business changes, including redundancies.

Chapters 6 and 7 cover the circumstances when employers might reasonably turn down requests for time off and the right to be paid. Chapters 8 and 9 deal with the right not to be victimised for exercising time off rights and the right to take claims to tribunals where the representative has not been given the right to time off.

The booklet refers to case law where this illustrates how the law on time off has been interpreted and uses information from a recent LRD survey of time off for trade union and learning representatives.

For union and employee reps to properly represent their members at work, they need time off to carry out their duties and activities, as well as for suitable training for their role. This fully updated booklet explains all the legal rights union and employee representatives have to time off, and the circumstances when they will be paid.

Facility time surveys

A survey of LRD’s workplace contacts was carried out in early 2010 with the results based on responses from 165 union representatives. Among the survey’s main findings are that:

• part-time reps in the private sector spend an average of 11.5 hours per week on trade union duties;

• part-time reps in the public sector spend an average of 10.5 hours per week on trade union duties;

• reps (both part-time and full-time) in the private sector spend an average of 2.7 unpaid hours per week on trade union duties;

• reps (both part-time and full-time) in the public sector spend an average of 4.0 unpaid hours per week on trade union duties;

• reps (both part-time and full-time) in the private sector spend an average of 14.7 paid hours per week on trade union duties; and

• reps (both part-time and full-time) in the public sector spend an average of 19.5 paid hours per week on trade union duties.

The 2004 Workplace Employment Relations Survey found that the average amount of time a union rep in the private sector spent on being a representative was around seven hours per week. This compared to around 14 hours in the public sector. Additionally, the June 2006 government review of workplace representatives’ facilities and facility time found that senior reps at workplaces where a union is recognised spend an average of 12.5 hours a week on their union duties.