Gaining from training
Trade union reps involved in collective bargaining have a right to paid time off to attend appropriate union courses. Consultative bodies under the Information and Consultation of Employees Regulations 2004 (ICE) and European Works Council reps do not have that right, but the guidance says it is good practice to allow it and even provide it. It also says employers should encourage reps and line managers to attend certain courses together. It recommends various ones – depending on circumstances – including representation, negotiating, equality issues and TUPE.
“E-learning tools related to the role of union reps should be used when available and appropriate,” says Acas. Union learning reps are subject to statutory provision as regards training. They must have been trained to carry out their duties or be able to show they will receive relevant training within six months of appointment. Or they must show they have the relevant experience and expertise that the role requires. Their union must give notice of this in writing.
Reasons to be less than cheerful?
Lawyers we spoke to pointed out several areas of concern. Guy Lamb, of DLA Piper, says the codes’ rules on employers respecting confidentiality of communications and monitoring of e-mails may conflict with their general policies on them. He adds that provisions for calculating pay for time off – Acas suggests the usual rates plus allowances and bonuses which might have been earned otherwise – could be a headache. He says regard should be given to shift premia, performance-related pay, bonuses and commission.
Halliwells’ Luke Green adds that employers need to be careful about calculating pay for time off “because if a union rep suffers a detriment in their pay this could result in costly employment claims, even if the employer has reduced a rep’s workload.”
Employment solicitor Emilie Darwin, of Rickerbys, says the paid time off provisions “will result in an added financial burden on employers and will have significant administrative and managerial implications.”
Michael Delaney, of Matthew Arnold & Baldwin, says: “The biggest cause for concern for employers is the increased responsibility placed on them to ensure the agreed arrangements with trade union reps work to both parties’ mutual advantage. An employer’s primary concern is to run a successful and profit-making business.”
Jeya Thiruchelvam, employment law editor at XpertHR, says employers cannot afford to ignore the new code: “While a breach of the code will not automatically render an employer liable to legal proceedings, employers cannot afford to ignore the code as its provisions are admissible in evidence in employment tribunal proceedings.”
Statutory time off
Employees and workers are entitled to take time off work for a number of statutory reasons. The length of leave permitted, and whether or not employers are required to pay for the time off, varies according to the nature of the time off requested. Failure to abide by the legislation will enable the employee to make a claim for compensation.
Te_SFlbime stands still for little in this life. Just seven years after the last code was issued in 2003, the Advisory, Conciliation and Arbitration Service (Acas) has issued a new code of practice on time off for union duties and activities, which came into effect on 1 January 2010. It has also produced accompanying guidance, Trade Union Representation in the Workplace, covering union representatives in the workplace, and Non-Union Representation in the Workplace, for non-union ones.
Why is an updated code needed? George Boyce, Acas senior policy adviser, says it followed a review of facilities and facility time for employee representatives undertaken by the Department for Business, Innovation and Skills in 2007. “It identified that many people felt the old code no longer fully reflected the workplace of the 21st century,” he explains. “Acas therefore undertook to update the code to take account of modern workplaces and working practices.”
Other bodies involved in the review and revision included the Confederation of British Industry (CBI) and the Trades Union Congress (TUC). CBI head of employment policy Neil Carberry says the CBI is happy with the new code “as it covers the needs of employers and employees and the legal guidance is fit for purpose”.
What is reasonable time off?
Michael Delaney, of Matthew Arnold & Baldwin, says: “There is no legal definition of ‘reasonable time off’ and so it is for the parties to decide between them what they would consider to be reasonable. This will need to be considered on a case-by-case basis.”
It is important for employers and reps to include specific clauses in agreements about time off that can be used to determine what is reasonable. For example, a senior union rep covering several sites will likely devote much, if not all, of his/her time to union duties, while a learning rep’s time off will be far more limited and be more amenable to agreed limitations.
Factors that have a bearing, says George Boyce of Acas, “include what the time off requested is for, how long it will last, how practicable it is to provide cover for the employee while they are away, and whether there are any special developments occurring in the workplace that employees have a right to be consulted about, such as redundancies or a business transfer. The code is designed to help employers make that call.”
Access to facilities
Acas says there is no statutory right other than for reps engaged in collective bargaining or TUPE negotiations. But it recommends that “where practical” employers should make facilities available to union reps. This should include accommodation, notice boards, access to phones, e-mail and the internet, plus a confidential space in which to meet employees involved in certain issues such as disciplinaries and grievances.
Paul Nowak, TUC head of organising, says: “We broadly welcome the new Acas code, and in particular the provision for employers to provide cover for union reps undertaking their duties or training. The new guidance that accompanies the code also recognises the role of union environmental and equality reps, and makes clear that it is good practice for employers to support these new types of union representatives.
“While this is a good first step, the TUC believes that government must ensure these new types of rep have statutory rights to paid time off and facilities to carry out their duties effectively.”
A warm-ish welcome, then, from capital and labour for the code. But what are the differences between the 2010 and the previous 2003 and 1998 codes?
Boyce says Acas has:
- updated some of the terminology
- added some statements on the positive role union reps can play
- included references to the role of reps in collective redundancies and TUPE transfers
- provided more guidance on providing cover for employees absent on representative duties
- provided more guidance on access to and use of electronic communications.
Employment solicitor Luke Green, of Halliwells, adds that the main difference between new and old codes “is the inclusion of guidance on paid time off and training for union learning reps brought in by the Employment Act 2002,” and paid time off “for negotiations relating to a transfer under TUPE 2006”.
Michael Delaney, partner at Matthew Arnold & Baldwin, says the 2010 code provides guidance “on the confidential and sensitive nature of communications involving union reps and guidance to employers on union reps being given access to facilities at the workplace”.
Trade Union Representation in the Workplace specifies nine areas of activity where union reps – and in some cases non-union ones – have statutory rights to paid time off to perform their duties, and in some cases to be released for training. All are also entitled to protection against discrimination and detriment. These areas are:
- Union reps in workplaces where the union is recognised for collective bargaining have rights under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) to paid time off for carrying out their duties and paid time off for training.
- Union learning reps have the right to paid time off to carry out their duties and paid time off for training.
- Health and safety reps appointed by unions in workplaces where they are recognised are covered by the Safety Representatives and Safety Committees Regulations 1977, and are entitled to paid time off to carry out their duties and paid time off for training.
- Information and consultation reps (these are union reps elected or seconded to negotiations for setting up information and/or consultation bodies under the Information and Consultation of Employees Regulations 2004 (ICE)) are entitled to paid time off to carry out their duties.
- Union and non-union reps on bodies such as European consultative bodies, typically European Works Councils, have the right to paid time off to carry out their duties.
- Pension reps elected for the purpose of consultation about changes to pensions arrangements – under the Occupational and Personal Pension Scheme (Consultation by Employer and Miscellaneous Amendment) Regulations 2006 – have the right to paid time off to carry out their duties.
- TUPE reps enjoy statutory rights set out in TUPE 2006 and TULRCA. They are: the right to paid time off to carry out their duties, paid time off for training, and the provision of facilities to help them perform their duties.
- Collective redundancy reps (when 20 or more employees face redundancy in a 90-day period, where the union is recognised, consultation must be with the union reps), have the right to paid time off to undertake their duties, paid time off for training, and the provision of facilities to help them perform their duties.
- Workforce agreement reps – these can be union or non-union reps involved in the negotiation and application of a statute covering the workplace relating to, for example, working time and maternity and paternity leave. These reps do not have the right to time off but, if they are recognised union reps, do have the right to facilities to help them perform their duties.
Acas notes that the duty to provide the rights and facilities set out in Trade Union Representation in the Workplace applies only to the rep’s employer and not to an associated one “unless agreed by them”. Acas says those employers who share sites and take part in joint negotiations and agreements should devise special arrangements.
Note that Trade Union Representation in the Workplace Code states that equality and environmental reps have no statutory rights to time off to carry out their duties or for training, nor for the provision of facilities.
Acas says appropriate training for these reps is available from trade unions, the TUC and the government-sponsored learning fund. It does recommend, though, that employers afford these reps time off and facilities and that this be included in any agreements between them and trade unions.
Employers should also note that non-union reps – Acas estimates about half of employee reps in UK workplaces are non-union – also have statutory rights. These are set out in the guidance Non-Union Representation in the Workplace. Briefly, these categories and rights are as follows:
- Employee safety reps have the right to paid time off to undertake their duties and for training and the provision of appropriate facilities.
- Information and consultation reps elected under ICE to help create and serve on consultative bodies have the right to paid time off.
- Non-union reps on European consultative bodies, such as European Works Councils, have the right to paid time off to carry out their duties.
- Non-union pension reps are entitled to the same.
- TUPE reps, elected at workplaces where unions are not recognised for collective bargaining purposes, must be informed and consulted about the transfer of undertakings under TUPE 2006. They have the right to paid time off to carry out their duties and for training and the provision of facilities to help them perform their duties.
- Collective redundancy reps, elected at workplaces where no trade unions are recognised for collective bargaining purposes, have the right to paid time off to undertake their duties and for training plus the provision of appropriate facilities.
- Workforce agreement reps who are elected and/or appointed to negotiate and monitor the application of particular regulations in the workplace, typically maternity and paternity leave, do not have the right to time off, but are protected against dismissal and detriment.
As for ordinary trade union members, Acas says they can request time off for union activities, such as attending workplace meetings, meeting full-time officers to discuss issues affecting the workplace, and voting in union elections.
“There is no right for an employee to be paid for taking time off for these activities,” says Boyce. “Employers can refuse a request for time off to undertake a trade union activity where they deem the request to be unreasonable.”
Both sets of guidance contain detailed instructions on drawing up formal agreements to enable employers and union and non-union reps to discuss time off.
Guy Lamb, employment partner at DLA Piper, says the main advantage for the employer of having one is that a clear agreement reduces the potential for disputes. “A specific agreement enables both line management and union reps to be clear about rights and responsibilities in relation to time off,” he adds. “In particular, an agreement allows the employer to establish specific notice provisions when union reps want to take time off.”
The guidance says agreements should set out what time off and access to facilities is reasonable and appropriate in particular circumstances, taking account of:
- size of organisation and number of workers
- production and operational processes
- the need to maintain a service to the public
- the need for safety and security at all times
- statutory requirements
- the complexity and number of issues that are expected to be dealt with
- the importance of training and preparation for meetings.
Agreements should also address communications issues such as setting up confidential e-mail accounts for union and non-union reps, providing space on an employer’s intranet for recognised unions, and the provision of telephones and dedicated accommodation.
Delaney warns that employers should ensure that agreements include an element of flexibility. “An employer would be prudent to include provisions allowing the agreement to be varied in certain situations. For example, short notice may be accepted provided that the employer can find staff cover.”
He recommends that employers draw up a list of occasions on which time off can be taken and include that in such agreements. These may include attending meetings with management or other union reps, time to prepare for management and trade union meetings, and attending union training events.
The code is not legally binding, but would be taken into account by employment tribunals when considering relevant cases, and would have a bearing on the decision they reach. Cases relating to issues covered above are thin on the ground, but thanks to Delaney for highlighting the case of Skiggs v South West Trains Limited, 2005.
Skiggs, a trade union rep for a recognised union, was refused time off to attend meetings as a trade union rep pending the conclusion of disciplinary proceedings which had been taken against him. The tribunal found the employer had breached its statutory duty to allow the employee to have paid time off to engage in union activities.
Delaney says: “An employer will be more justified in refusing a request for time off if the union rep does not give the employer sufficient notice with regard to the purpose of the time off, the intended location and the timing and duration of the time required to fulfil union duties.
“A business still needs to run efficiently, and if an employer is not given adequate warning to enable it to provide cover for the absent union member, it will have stronger grounds on which to refuse the request.”