Introduction

Union and other workplace representatives need time off to carry out their duties and activities if they are to represent workers to their best ability. They also need access to suitable training, facilities, legal protection, and remedies if employers do not respect their statutory rights. This time is known as “facility time”.

Union reps have had a statutory right to reasonable time off to carry out trade union duties since 1975. They also have the right to take reasonable unpaid time off to undertake union activities. The main rights are found in the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), although there are also other specific statutory time off rights, for example in the context of health and safety (see Chapter 4) or consultation over proposed redundancies or transfers (see Chapter 6).

Guidance on applying the right to paid time off in the workplace is provided by the Acas Code of Practice, Time off for Trade Union duties and Activities (see Chapter 1). In many workplaces where unions are recognised, formal facility agreements have been negotiated, clarifying or extending the statutory rights.

Union facility time in the context of public services has been under consistent government attack since 2010, but levels of hostility have escalated since the 2015 election. The aim of these attacks has been to brand facility time as a wasteful use of public funds. Only public sector employers are being directly targeted at this stage, but private and voluntary sector employers may well interpret the government’s stance as a green light to cut back on established facility time arrangements, as some are already doing (see page 13).

In making these attacks, no account is taken of the benefits of facility time. Here are some of those benefits:

• unionised workplaces are more likely to have family friendly policies, including job shares, term time working, compressed working weeks and annualised hours, and are more likely to provide enhanced maternity pay;

• unionised workplaces are safer: safety reps reduce serious workplace injuries by 50% and union safety reps save taxpayers between £181 million and £578 million (2004 prices) every year due to fewer working days being lost through occupational injuries and work-related illnesses;

• employers who recognize unions are more likely to provide additional benefits, including enhanced sick pay policies and holiday entitlements, and employer-provided pensions;

• employers who recognise unions are more likely to value the contribution of pregnant workers and new mothers, more likely to regard statutory rights relating to pregnancy and maternity as reasonable, better informed as to those rights and more likely to engage in informal discussions with new mothers to support a successful return to work;

• trade unions promote skills and training at work. Employers are 16% more likely to invest in higher training levels where agreements have been negotiated with unions;

• where organisations face difficult economic conditions, unions work with employers to save jobs, retain skilled employment and avoid compulsory redundancies;

• union reps ensure workers’ concerns are listened to and resolved at work, improving engagement, morale, productivity and service delivery.

The attack on facility time reached new heights with the Trade Union Act 2016 (TUA 16). The Act included two new measures relevant to facility time, namely:

• a new duty on most public sector employers to record and disclose the number of hours spent on union activity and the “cost” of those hours (see page 13);

• a “reserve power” enabling the government to legislate to place an overall cap on the amount of facility time in the public sector in the future. Union campaigning secured significant concessions in relation to this reserve power before the Act became law (see page 15).

A key aim of the government attack on facility time is to undermine the ability of public service unions to organise members at work and to negotiate improvements in pay and conditions for working people. As Hannah Reed, TUC senior employment rights officer, noted, “the new reporting duties were clearly introduced with a view to reducing the amount of time union reps can spend representing members on health and safety, in grievances and disciplinary hearings, and around the negotiating table.”

Difficult times

The process by which the UK leaves the European Union may impact on facility time rights in the future, since many of these stem from European Union directives, for example paid time off for reps, consultation on collective redundancies, business transfers, and information and consultation.

What becomes of those rights will depend on how the European Union (Withdrawal) Bill is enacted and implemented. The government said (in July 2017) that the Bill would ensure that “wherever possible”, the same rules and laws apply on the day after we leave the EU as before. But TUC general secretary Frances O’Grady has described it as a “Downing Street power grab” with nothing to prevent politicians “shredding or watering down our rights in the future”.

Responding to the challenge

The TUC says trade unions need to remain alert and ready to run effective campaigns opposing cuts in facility time, working with employers where possible to present the benefits of union activity, while ensuring there is no “double counting” of facility time.

Individual unions have stepped up their efforts to maintain or develop the best possible facility time agreements, including Unite, through its Trade Union Facilities Template, and UNISON through its Facility time Guidance for UNISON branches and model agreement. Both are quoted in this booklet.

More information and guidance is needed to help reps overcome the challenge of accessing facility time, according to analysis by social research body NatCen. It suggests raising awareness among managers and colleagues; sharing good practice; and setting up more transparent systems for allocating and monitoring work, to reduce concerns about potential misuse of facility time.

The aim of this booklet is to highlight what is changing for facility time, but also what has not changed. Chapter 1 summarises the basic legal framework, including the changes introduced by the TUA 16. Chapter 2 outlines the benefits of facility time and Chapter 3 looks at rights to “reasonable” time off for union reps where independent trade unions are recognised.

Chapters 4 and 5 focus on union safety reps and union learning reps respectively and Chapter 6 examines other roles carried out by reps including Representatives of Employee Safety (ROES). Chapter 7 explains the practicalities of being a rep drawing on the latest LRD survey and legal cases.

Finally Chapters 8 and 9 focus on the other essential parts of the time off agenda such as time off for training, access to facilities and legal protections for reps.