If a company bargains with an independent trade union, employees who are members or officials of that union are entitled to a reasonable amount of time off to carry out their activities and duties. This includes their activities as, or using the services of, union learning representatives.
The Advisory, Conciliation and Arbitration Service (ACAS) has produced a Code of Practice on time off for union duties and activities ( Union members links ). This gives practical guidance on the management of requests for time off. The Code is not in itself legally binding, so it is not necessarily unlawful not to follow it. Nevertheless, the content of the Code will be taken into account by an employment tribunal when hearing a claim that an employer has unlawfully refused to allow time off.
It is automatically unfair to dismiss an employee, or to select an employee for redundancy, for enforcing his or her right to time off for union duties or activities, or for alleging that the employer has failed to allow him or her the right to time off. This applies regardless of the employee's age or length of service.
Employees who are officials of an independent recognised union have the right to a reasonable amount of paid time off to carry out their duties. This covers union officers as well as shop stewards elected or appointed at workplace level.
The right to paid time off covers any of the official's duties that are concerned with:
- negotiations with the company over issues that are covered by the recognition agreement the company has with the union (recognition agreements are discussed elsewhere in this Guide (recognition considerations));
- the performance of any other function that the company has agreed the official should perform; or
- the receipt of information and consultation under the legislation for instance on large-scale redundancies (collective consultation) and business transfers (informing and consulting).
The ACAS Code suggests that duties concerned with negotiations with the employer could include preparing for the negotiations and informing members of their progress and outcome.
Officials are also entitled to a reasonable amount of paid time off to undergo training in aspects of industrial relations that are relevant to the duties for which they are entitled to time off. The training must, however, be approved by the Trades Union Congress (TUC) or the officials' own union.
The amount, purposes and timing of the time off that should be allowed, and any conditions that may apply, are whatever is reasonable in the circumstances. The ACAS Code is relevant here. The Code suggests, for example, that an official requesting time off should take into account the employer's operational circumstances, including its size and the need to maintain the production process, and give as much notice as possible. For its part, when considering a request for time off, the employer should take into account possible difficulties that the official may have in communicating with members who work part-time or on shifts or at distant locations.
If the official is asking for time off to attend a training course, the ACAS Code suggests that he or she should provide a copy of the syllabus or prospectus indicating the content of the course.
Employers should bear in mind that it is reasonable to expect officials to spread their absences for training over a period, particularly where the course at issue is repeated regularly and a number of officials have asked to attend the same course. A company may wish to consider running a training course jointly with the union on the company's premises and making the course more relevant to the company's business. The company could even arrange for its own management staff or external experts, such as from its Association, to contribute to the course.
Under the trade union legislation, officials have the right to be paid only for time off that falls during their working hours. However, the law requires, and the ACAS Code acknowledges, that officials who work part-time are entitled to be paid for time spent on their duties and training in the same way as officials who are full-time employees. So, for example, a part-timer who is given time off to attend a full-time training course connected with her union duties should be paid for the full duration of the course, and not just for her part-time hours.
Employees who are members of an independent recognised union are entitled to a reasonable amount of unpaid time off to take part in the union's activities. The ACAS Code gives some examples of the activities that could be covered: attendance at meetings to discuss and vote on the outcome of negotiations; meeting with union officials to discuss workplace issues; and voting in union elections.
If an employee is acting as the union's representative by, for example, attending a union conference as representative of a particular branch, he or she is entitled to reasonable unpaid time off to carry out his or her activities in that role. The ACAS Code suggests that a representative's activities might include attending branch, area or regional meetings of the union, the union's annual conference and meetings with union officials to discuss workplace issues.
The amount, purposes and timing of the time off that should be allowed, and any conditions that may apply, are whatever is reasonable in the circumstances. The ACAS Code gives guidance on this. It suggests, for example, that the amount of time off that an employee has already had can be taken into account when deciding whether a request for further time off is reasonable.
If an independent recognised union has appointed or elected a learning representative from amongst the workforce, the representative is entitled to reasonable paid time off to carry out certain activities in relation to those of the union's members who are covered by the recognition agreement. The activities are: analysing the members' learning or training needs; providing them with information and advice about learning or training matters; arranging learning or training for them; and promoting the value of learning and training. The representative is also entitled to time off to consult with the employer about these activities, to prepare for them and to undergo relevant training.
In order for the representative to qualify for time off, the union must have notified the employer in writing that the employee is its learning representative, and the individual must have had, or shortly be about to receive, sufficient training to carry out the activities. The ACAS Code gives guidance on what amounts to sufficient training.
Under the trade union legislation, learning representatives have the right to be paid only for time off that falls during their working hours. However, the law requires, and the ACAS Code acknowledges, that representatives who work part-time are entitled to equal treatment with representatives who work full-time. This effectively means that they should be paid for any time they spend on their activities outside their part-time hours but within full-time working hours, if a full-time employee would have been entitled to time off for those activities.
Members of the union are entitled to a reasonable amount of unpaid time off in order to use the learning representative's services. The amount, purposes and timing of the time off that should be allowed for learning representatives and members using them, and any conditions that may apply, are whatever is reasonable in the circumstances. The ACAS Code gives guidance on this.
The ACAS Code encourages employers to reach a formal agreement with their recognised unions on time off. The existence and content of an agreement may be relevant to whether it is reasonable for time off to be granted in a particular case. Time off issues may be included in the general recognition agreement that an employer has with its recognised union. Recognition agreements are discussed elsewhere in this Guide (recognition agreements).