The Law is mainly set out under sections 168-170 of the Trade Union and Labour Relations (Consolidation) Act 1992. (“The Act”) http://www.legislation.gov.uk/ukpga/1992/52/contents
The right to time off for Union Learning Representatives (“ULR”) was introduced by Section 43 of the Employment Act 2002.http://www.legislation.gov.uk/ukpga/2002/22/section/43
There is also an ACAS Code of Practice 3, Time off for Trade Union Duties and Activities (“The Code”) which provides guidance on the law as well as commenting on good practice.http://www.acas.org.uk/index.aspx?articleid=2391
To be officially recognised as a ULR and to benefit from all the relevant legal rights a person must be:
- a) Officially Appointed
A person must be elected or appointed to be a ULR in accordance with the rules of his union including the rules of any relevant branch or section of the union (s 119 of the Act).
- b) Duly Accredited To The Employer.
The trade union must give notice in writing to the employer that the person concerned is a ULR of the union (s. 168A(4)(a) of the Act).
- c) Be Sufficiently Trained
The Act (s 168A(4)) calls this ‘the training condition’ and it can besatisfied as follows:
1. If a ULR is already appropriately trained, the Union simply gives the employer notice in writing of that fact. The Code says it is good practice for the Union to give details of the training provided and any previous training that has been taken into account.
- If a ULR is untrained, the Union can give the Employer notice in writing that the ULR will be undergoing sufficient training, within six months. If the training is not done within that time, the ULR will not be officially recognised. However, Paragraph 29 of the Code states that it would be good practice for the employer to agree to extend the six months to take account of ‘any significant unforeseen circumstances such as prolonged absence from work due to ill health, pregnancy, bereavement or unavoidable delays’
S168A(6)of the Act states that the sufficiency of any training is to be assessed with reference to the Code, which explicitly states that the ULR may demonstrate competence in ‘one or more’ of the relevant areas identified below..
Paragraph 31 of the Code states that the ULR may demonstrate competence by showing that they have taken an appropriate training course approved by the TUC or their own Union or they have gained enough expertise and experience to be able to operate effectively without undergoing a formal training course. It goes on to say that ‘”In the latter, previous experience and expertise gained in areas such as teaching, training, counselling, providing careers advice and guidance or human resource development, could be relevant, as may periods of extensive on-the-job training and experience gained in shadowing an experienced ULR”
Paragraph 33 of the Code comments that it is better if the training leads to a ‘recognised qualification standard’.
To promote teaming at the workplace, principally by talking to individual members and advising them about their educational, training and development needs. Section 168A(2) of the Act identifies four functions :
o analysing learning or training needs;
o providing information about learning or training matters;
o arranging learning or training, and
o promoting the value of learning or training
These can be defined as carrying on any of the above activities,consulting the employer about carrying on any of those activities or preparing for any of those activities or consultations including training
The ULR can operate in relation to:
- Employees covered by the Union’s recognition agreement AND
- In relation to whom it the function of the ULR to act as such
( as per s. 168A(2) and (10) of the Act).
Legal Rights for a ULR
An employer must allow an official ULR:
- To take a reasonable amount of time off during his working hours in order to fulfil his/her obligations as a ULR (s 168A(1), (8)).
To take a reasonable amount of time off to undergo relevant training (s 168A(7)(a),
- To take a reasonable amount of time off work to undergo initial training (s 168A(7)(b), providing that the Union first notifies the employer in writing that the ULR will be undergoing initial training. The time off must be taken within six months of that notification
Paragraph 32 of the code states that reasonable time off for further training should also be considered to help ULRs develop skills and competencies.
How much time off is allowed?
An amount which is reasonable in all the circumstances, taking into account the purposes for which it is claimed, the occasions on which it is claimed, and the conditions subject to which it is allowed (s 168A(8))
In all cases reasonableness is to be assessed in the light of any guidance given in the Code at Paragraph 42. Factors to be considered are:
- Size of the organisation and number of workers
- The production process
- The need to maintain a service to the public
- The need for safety and security
An employer must pay a ULR for the reasonable time off (as discussed above).The ULR’s rights in this regard are the same as other trade union representatives.
Paragraph 34 of the Code states that the pay should be the amount the ULR would have earned had they been in work during the time off including any shift premium, bonus, performance related pay and commission. Furthermore any performance pay target should be reduced accordingly.
ULRs may not as a general rule claim statutory pay for any training or activities carried out at times when s/he would not otherwise have been at work. However there does appear to be an exception for part-time employees: who may be entitled to be paid for any time for which a full-timer would be paid. This is according to the case of (Davies v Neath Port Talbot CountyBorough Council 1999) IRLR 769. EAT)
Requesting Time Off
From Paragraph 50 the Code suggests that as much notice as possible be given, including:
- The purpose of the time off
- The intended location
- Timing and duration required
ULRs should also be as flexible as possible where immediate/unexpected needs of the business make cover difficult.
Agreements on Time Off
The Code recommends that a formal agreement between the Union and the employer can be advantageous to both parties. As it can help to:
- Provide clear guidelines
- Establish realistic expectations
- Ensure fair and reasonable treatment
- Help better planning
Such agreements should specify things like:
- Amount of time off permitted with pay
- Arrangements if time off needed at short notice
- How pay is to be calculated
- Facilities and equipment ot be provided
What to do if your rights are breached?
An aggrieved ULR may complain to an employment tribunal for complaints relating to the employer’s failure to allow reasonable time off or for refusal to pay it. ULRs may also complain of being subjected to a detriment by the employer if it is for the purpose ofpreventing or deterring them from taking part in union activities.
A formal grievance should be registered with the Employer. If this does not resolve the issue, Early Conciliation with ACAS should be started within three months of the date of the failure.
If this is unsuccessful, Employment Tribunal proceedings must be commenced within a month of ACAS issuing the certificate of conciliation.
If a complaint is successful at the Employment Tribunal, it will make a declaration to that effect. It also has the power to award money compensation by way of a sum it considers as just and equitable in all the circumstances having regard to the employer’s default. and to any loss sustained by the ULR, which may include compensation for injury to health or feelings as well as actual losses such as wages
Employees who are members of the Union are permitted reasonable time off during working hours to access ULR services but there is no legal right to pay for that time off. However paragraph 41 of the code suggests employers consider payment to ensure employees use ULR services