Under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRA), union members and officials have the right to a certain amount of time off to learn the skills to do their job properly.
A solicitor from Thompsons' Employment Rights Unit in Liverpool, reviews when and how a trade unionist can exercise these rights and what to do if an employer refuses to allow them.
There are separate rights for time off for union learning and health and safety representatives, which are not covered in this article.
Who qualifies for paid time off work for union duties?
Employers who recognise a union for collective bargaining purposes must allow employees, who are officials of that independent trade union, to take reasonable paid time off during their working hours to carry out their union duties or undergo relevant training.
An official is an employee who has been elected or appointed in accordance with the rules of the union to be a representative.
Who qualifies for time off work for union activities?
The right to unpaid time off for trade union activities applies to all members of independent trade unions that are recognised by the employer for bargaining purposes.
For instance, a union member may claim time off work to take part in a union activity such as a workplace meeting. Although they have no right to be paid, the ACAS (Advisory, Conciliation and Arbitration Service) code recommends that the employer should pay "in certain circumstances, for example to ensure that workplace meetings are fully represented".
In Luce v London Borough of Bexley (1990), a teacher was denied time off to attend a lobby of Parliament organised by his union to protest about the Education Reform Bill. The employment appeal tribunal (EAT) said that the lobby was not capable of being a trade union activity.
Do members and officials need permission?
The simple answer is yes. Members and officials also have to give as much notice as possible to management and advise them of the purpose, time, place and location of the duty or relevant training requested.
There is no absolute right to take time off but an employer should not refuse a reasonable request to do so. If it is refused, the member should raise this under the grievance procedure and may complain to an employment tribunal.
The law does not say what would happen if a member takes time off, following an employer's unreasonable refusal. In that event, a member should seek advice from their union.
What guidance is there?
The TULRA provisions are supplemented by the ACAS code of practice on time off, which gives practical guidance that will be taken into account by an employment tribunal.
What duties qualify?
The right to reasonable time off applies to relevant negotiations or other duties agreed by the employer. The duties must be agreed between the official and the union; concern something for which the employer has recognised the union; and relate to the ACAS list below:
terms and conditions of employment
the physical working environment
recruitment, termination and suspension of employment
allocation of work
discipline
union membership
facilities for union officials negotiating consultation and other procedures.
What type of training qualifies?
The training must:
be relevant to those official duties
be approved training by the TUC or the official's own union.
The fact that the TUC or the union may consider that a course is relevant is not conclusive. The ACAS code of practice suggests that an employer should consider releasing an official for initial training in basic skills as soon as they take office.
Additional training is likely to be required when circumstances change, or when new legislation is likely to be relevant.
Do officials get paid for time off?
An official who has been allowed time off work for trade union duties during work hours is entitled to be paid in full for the reasonable time off. The employer only has to pay, however, for those hours during which the official is contractually required to be at work.
How is reasonableness assessed?
The legislation and the code of practice emphasise both sides acting reasonably. If the employer and the official cannot agree, the employment tribunal must decide whether the employer's assessment came within a band of reasonableness.
For time off to be reasonable, the following criteria are relevant:
the amount of time off
the purposes for which it is sought
the occasion for which it is sought (including frequency)
the conditions subject to which time is granted When assessing reasonableness certain circumstances are taken into account including:
the effect on the employer's business operations
the extent of the member's need to take time off work in order to participate effectively.
It is also relevant to take into account how much time the member has already been permitted to take off or has been promised, on either trade union activities or other grounds.
In Wignall v British Gas Corporation (1984) a member was refused 10 days off work to prepare a union magazine. The EAT decided that the employers were reasonable in refusing the request because the member was already permitted 12 weeks' leave a year, partly paid and partly unpaid.
Time off may be sought for any activity - it is not for the tribunal to decide. However, it must take into account the nature of that activity when assessing the reason for refusing the time off.
The activities of the union refer to any activity in which the union properly engages except for industrial action (which is excluded).
What time limits apply to tribunal claims?
A claim must be made within three months of the date when the request for time off was refused. However, the member should first raise any complaint under the employer's grievance procedure.
What awards can tribunals make?
If the employer fails to allow time off or gives too little time off, the member should raise this under the grievance procedure and can complain to an employment tribunal.
If the member's complaint is substantiated, the tribunal may make a declaration that time off should be granted and award financial compensation. The tribunal can award whatever it considers just in the circumstances. The tribunal can award compensation for financial loss and injury to feelings.
How can tribunal claims be avoided?
A clearly worded formal agreement on time off can prevent disputes on the definition of time off, the reasonableness or otherwise of a refusal, or indeed the nature and timing of a request for time off.