Time off for trade union duties and activities

January 2010 Code of Practice 3 Time off for trade union duties activities including guidance on time off for union learning representatives

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This code revises the Acas Code of Practice on Time Off for Trade Union Duties Activities which came into effect on 27 April 2003. This revised code is issued under Section 199 of the Trade Union Labour Relations (Consolidation) Act 1992 comes into force by order of the Secretary of State on 1 January 2010. 1

Contents Introduction Terminology The background General purpose of the Code Structure of the Code Status of the Code Page 3 3 4 5 5 5 1 Section 1 : Time off for Trade Union Duties Entitlement Examples of trade union duties Union Learning Representatives Payment for time off for trade union duties Time off to accompany workers at disciplinary or grievance hearings 6 6 7 9 10 11 2 Section 2 : Training of Union representatives in aspects of employment relations employee development Entitlement What is relevant employment relations training? Training for Union Learning Representatives Payment for time off for training 12 12 13 14 17 3 Section 3 : Time off for Trade Union Activities Entitlement What are examples of trade union activities? Payment for time off for trade union activities 18 18 18 19 4 Section 4 : The responsibilities of employers trade unions General considerations Requesting time off 20 20 23 5 6 7 Section 5 : Agreements on time off 25 Section 6 : Industrial action 27 Section 7 : Resolving disputes 27 Annex: The law on time off for trade union duties activities 28 2 CodE of PRaCTiCE 3 TiME off for TRadE UNioN duties and activities

Introduction 1. Under section 199 of the Trade Union Labour Relations (Consolidation) Act 1992 the Advisory, Conciliation Arbitration Service (Acas) has a duty to provide practical guidance on the time off to be permitted by an employer: (a) to a trade union official in accordance with section 168 of the Trade Union Labour Relations (Consolidation) Act 1992; (b) to a trade union member in accordance with section 170 of the Trade Union Labour Relations (Consolidation) Act 1992. Section 199 of the Act, as amended by the Employment Act 2002, also provides for Acas to issue practical guidance on time off training for Union Learning Representatives. This Code, which replaces the Code of Practice issued by Acas in 2003, is intended to provide such guidance. Advice on the role responsibilities of employee representatives is provided in two Acas Guides: Trade union representation in the workplace: a guide to managing time off, training facilities Non-union representation in the workplace: a guide to managing time off, training facilities. Terminology 2. In this Code the term Trade union official, is replaced by union representative. In practice there is often confusion between an official an officer of a union the term representative is commonly used in practice. Section 119 of the Trade Union Labour Relations (Consolidation) Act 1992 defines an official as (a) an officer of the union or of a branch or section of the union, or (b) a person elected or appointed in accordance with the rules of the union to be a representative of its members or of some of them, includes a person so elected or appointed who is an employee of the same employer as the members or one or more of the members whom he is to represent. Section 181 (1) of the same Act defines a representative, for the purposes of sections 181 185 of the Act, as an official or other person authorised by the union to carry on such collective bargaining. introduction 3

Introduction In this Code a union representative means an employee who has been elected or appointed in accordance with the rules of the independent union to be a representative of all or some of the union s members in the particular company or workplace, or agreed group of workplaces 1. Under section 199 of the Trade Union Labour Relations where the union is recognised for collective bargaining purposes. This (Consolidation) Act 1992 Acas has a duty to provide practical is intended to equate with the legal term trade union official for the guidance on the time off to be permitted by an employer: purposes of this Code. (a) The to term a trade union union full-time official officer in accordance in this Code with means section a trade 168 of union the official Trade who Union is employed Labour by an Relations independent (Consolidation) trade union Act to represent 1992; members in workplaces, or groups of workplaces, where the union is (b) recognised to a trade for union collective member bargaining accordance purposes. with section 170 of the Trade Union Labour Relations (Consolidation) Act 1992. A Union Learning Representative is an employee who is a member of Section an independent 199 of the trade Act, union as amended recognised by the by the Employment employer who Act 2002, has been also elected provides or appointed for Acas in to accordance issue practical with the guidance rules of on the time union off to be a training learning for representative Union Learning of the Representatives. union the workplace. The This background Code, which replaces the Code of Practice issued by Acas in 3. 1998, Union is representatives intended to provide have had such a statutory guidance. right to reasonable paid time off from employment to carry out trade union duties to The undertake background trade union training since the Employment Protection Act 2. Since 1975. the Union Employment representatives Protection members Act 1975, were trade also union given officials a statutory have had right a to statutory reasonable right unpaid to reasonable time off when paid time taking off part from in employment trade union to carry activities. out trade Union union duties duties must relate to to undertake matters covered trade union by collective training. Union bargaining officials agreements members between were employers also given a statutory trade unions right to reasonable relate to the unpaid union representative s time off when taking own employer, part in trade unless union agreed activities. In otherwise 1989 restrictions in circumstances were introduced of multi-employer on the range bargaining, of issues for not, which for paid example, time off to for any trade associated union employer. duties could All the be claimed time off provisions to those covered were by brought recognition together agreements in sections between 168 170 employers of the Trade Union trade unions. Labour Additionally Relations (Consolidation) union duties must Act 1992. relate Section to the official s 43 the own Employment employer Act 2002 not, added for example, a new right to any for Union associated Learning employer. Representatives All the time to take off provisions paid time off were during brought working together hours in to sections undertake 168 their - 170 duties of the Trade to Union undertake Labour relevant Relations training. The (Consolidation) rights to time Act off 1992. for the Section purpose 43 of of the carrying Employment out trade Act union 2002 duties, added a new to take right time for off Union for training, Learning were Representatives extended to union to take representatives paid time off engaged during in working duties related hours to to undertake redundancies their under duties Section to 188 undertake of the amended relevant training. 1992 Act to duties relating to the Transfer of Undertakings (Protection of Employment) Regulations 2006. 42 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

General purpose of the Code 4. The general purpose of the statutory provisions this Code of Practice is to aid improve the effectiveness of relationships between employers trade unions. Employers unions have a joint responsibility to ensure that agreed arrangements work to mutual advantage by specifying how reasonable time off for union duties activities for training will work. Structure of the Code 5. Section 1 of this Code provides guidance on time off for trade union duties. Section 2 deals with time off for training of trade union representatives offers guidance on sufficient training for Union Learning Representatives. Section 3 considers time off for trade union activities. In each case the amount frequency of time off, the purposes for which any conditions subject to which time off may be taken, are to be those that are reasonable in all the circumstances. Section 4 describes the responsibilities which employers trade unions share in considering reasonable time off. Section 5 notes the advantages of reaching formal agreements on time off. Section 6 deals with industrial action Section 7 with methods of appeal. 6. The annex to this Code reproduces the relevant statutory provisions on time off. To help differentiate between these practical guidance, the summary of statutory provisions relating to time off which appears in the main text of the Code is in bold type. Practical guidance is in ordinary type. While every effort has been made to ensure that the summary of the statutory provisions included in this Code is accurate, only the courts can interpret the law authoritatively. Status of the Code 7. The provisions of this Code are admissible in evidence in proceedings before an Employment Tribunal relating to time off for trade union duties activities. Any provisions of the Code which appear to the Tribunal to be relevant shall be taken into account. However, failure to observe any provision of the Code does not of itself render a person liable to any proceedings. introduction 5

Section 1 Introduction Time off For Trade Union Duties 1. Under section 199 of the Trade Union Labour Relations Union (Consolidation) representatives Act undertake 1992 Acas a variety has a of duty roles to in provide collective practical bargaining guidance in working on with the management, time off to be communicating permitted by an with employer: union members, liaising with their trade union in hling individual disciplinary grievance (a) to a matters trade union on behalf official of employees. in accordance There with are section positive 168 benefits of the for employers, Trade employees Union Labour for union Relations members (Consolidation) in encouraging Act the 1992; efficient performance of union representatives work, for example in aiding the resolution (b) to a of trade problems union member conflicts in at accordance work. The role with can section be both 170 of the deming Trade Union complex. Labour In order Relations to perform (Consolidation) effectively union Act 1992. representatives need to have reasonable paid time off from their normal job in appropriate Section 199 circumstances. of the Act, as amended by the Employment Act 2002, Entitlement also provides for Acas to issue practical guidance on time off training for Union Learning Representatives. 8. Employees who are union representatives of an independent This trade Code, union which recognised replaces by the their Code employer of Practice are issued to be by permitted Acas in 1998, reasonable is intended time to off provide during such working guidance. hours to carry out certain trade union duties. 9. The Union background representatives are entitled to time off where the duties 2. Since are concerned the Employment with: Protection Act 1975, trade union officials have had a statutory right to reasonable paid time off from employment to negotiations with the employer about matters which fall carry out trade union duties to undertake trade union training. within section 178(2) of the Trade Union Labour Relations Union officials members were also given a statutory right to (Consolidation) Act 1992 (TULR(C)A) for which the union reasonable unpaid time off when taking part in trade union activities. is recognised for the purposes of collective bargaining by the In 1989 restrictions were introduced on the range of issues for which employer; paid time off for trade union duties could be claimed to those covered by any recognition other functions agreements on between behalf of employers employees of trade the employer unions. Additionally which are union related duties to matters must relate falling to the within official s section own 178(2) employer TULR(C)A not, for example, which to any the associated employer has employer. agreed All the the union time off may provisions perform; were brought together in sections 168-170 of the Trade Union the receipt Labour of information Relations (Consolidation) from the employer Act 1992. Section consultation 43 of the by Employment the employer Act under 2002 added section a new 188 right TULR(C)A, for Union related Learning to Representatives redundancy or to under take paid the time Transfer off during of Undertakings working hours (Protection to undertake of Employment) their duties Regulations to undertake 2006 that relevant applies training. to employees of the employer; negotiations with a view to entering into an agreement under regulation 9 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 that applies to employees of the employer; or 62 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

the performance on behalf of employees of the employer of functions related to or connected with the making of an agreement under regulation 9 of the Transfer of Undertakings (Protection or Employment) Regulations 2006. 1 Matters falling within section 178(2) TULR(C)A are listed in the sub headings of paragraph 13 below. 10. The Safety Representatives Safety Committees Regulations 1977 regulation 4(2)(a) requires that employers allow union health safety representatives paid time, as is necessary, during working hours,to perform their functions. Further advice on time off provisions for health safety representatives is provided by the Health Safety Executive in their approved Code Guidance Consulting workers on health safety. This is not covered in this Acas Code. 11. An independent trade union is recognised by an employer when it is recognised to any extent for the purposes of collective bargaining. Where a trade union is not so recognised by an employer, employees have no statutory right to time off to undertake any duties except that of accompanying a worker at a disciplinary or grievance hearing (see para 20). Examples of trade union duties 12. Subject to the recognition or other agreement, trade union representatives should be allowed to take reasonable time off for duties concerned with negotiations or, where their employer has agreed, for duties concerned with other functions related to or connected with the subjects of collective bargaining. 13. The subjects connected with collective bargaining may include one or more of the following: (a) terms conditions of employment, or the physical conditions in which workers are required to work. Examples could include: pay hours of work holidays holiday pay sick pay arrangements SECTioN 1 TiME off for TRadE UNioN duties 7

Introduction pensions learning training equality diversity 1. Under section notice periods 199 of the Trade Union Labour Relations (Consolidation) the working Act environment 1992 Acas has a duty to provide practical guidance operation on the time of digital off to equipment be permitted by other an machinery; employer: (a) (b) to engagement a trade union or official non in engagement, accordance or with termination section 168 or of the Trade suspension Union of Labour employment Relations or the (Consolidation) duties of employment, Act 1992; of one or more workers. Examples could include: (b) to a recruitment trade union member selection in accordance policies with section 170 of the Trade human Union resource Labour planning Relations (Consolidation) Act 1992. redundancy dismissal arrangements; Section 199 of the Act, as amended by the Employment Act 2002, also (c) provides allocation for of Acas work to or issue the practical duties of guidance employment on time as off between training workers for Union or groups Learning of Representatives. workers. Examples could include: job grading This Code, job evaluation which replaces the Code of Practice issued by Acas in 1998, is job intended descriptions to provide such guidance. flexible working practices The background work-life balance; 2. Since (d) matters the Employment of discipline. Protection Examples Act 1975, could trade include: union officials have had a statutory disciplinary right procedures to reasonable paid time off from employment to carry out trade union duties to undertake trade union training. arrangements for representing or accompanying employees at Union officials members were also given a statutory right to internal interviews reasonable unpaid time off when taking part in trade union activities. arrangements for appearing on behalf of trade union members, In 1989 restrictions were introduced on the range of issues for which or as witnesses, before agreed outside appeal bodies or paid time off for trade union duties could be claimed to those covered employment tribunals; by recognition agreements between employers trade unions. Additionally (e) trade union membership duties must relate or non to the membership. official s own Examples employer could not, include: for example, to any associated employer. All the time off provisions representational were brought arrangements together in sections 168-170 of the Trade Union Labour Relations (Consolidation) Act 1992. Section 43 of any union involvement in the induction of new workers; the Employment Act 2002 added a new right for Union Learning Representatives (f) facilities for to trade take paid union time representatives. off during working Examples hours to could undertake include their any duties agreed arrangements to undertake for relevant the provision training. of: accommodation equipment names of new workers to the union; 82 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

(g) machinery for negotiation or consultation other procedures. Examples could include arrangements for: collective bargaining at the employer /or multi-employer level grievance procedures joint consultation communicating with members communicating with other union representatives union full-time officers concerned with collective bargaining with the employer. 1 14. The duties of a representative of a recognised trade union must be connected with or related to negotiations or the performance of functions both in time subject matter. Reasonable time off may be sought, for example, to: prepare for negotiations, including attending relevant meetings inform members of progress outcomes prepare for meetings with the employer about matters for which the trade union has only representational rights. 15. Trade union duties will also be related to the receipt of information consultation related to the hling of collective redundancies where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days, where the Transfer of Undertakings (Protection of Employees) Regulations apply but also including the negotiations with a view to entering an agreement under regulation 9 of the Regulations (variation of contract in insolvency). Union Learning Representatives 16. Employees who are members of an independent trade union recognised by the employer can take reasonable time off to undertake the duties of a Union Learning Representative, provided that the union has given the employer notice in writing that the employee is a learning representative of the trade union the training condition is met (see paras 28 33 for further information on the training condition) The functions for which time off as a Union Learning Representative is allowed are: analysing learning or training needs SECTioN 1 TiME off for TRadE UNioN duties 9

Introduction providing information advice about learning or training matters arranging learning or training 1. Under promoting section the 199 value of the of Trade learning Union or training Labour Relations (Consolidation) consulting the Act employer 1992 Acas about has a carrying duty to provide on any practical such activities guidance preparation the to time carry off out to be any permitted of the above by an employer: activities undergoing relevant training. (a) to a trade union official in accordance with section 168 of the In Trade practice, Union the roles Labour responsibilities Relations (Consolidation) of Union Learning Act 1992; Representatives will often vary by union by workplace but must (b) include to a trade one or union more member of these in functions. accordance In some with cases section it may 170 be of the helpful if Union Trade Learning Union Representatives Labour Relations attend (Consolidation) meetings concerned Act 1992. with agreeing promoting learning agreements. Employers may also see Section it in their 199 interests of the to Act, grant as amended paid time off by for the these Employment representatives Act 2002, to also attend provides meetings for Acas with external to issue partners practical concerned guidance with on time the off training development for Union Learning provision Representatives. of workforce training. Recognition needs to be given to the varying roles of Union Learning This Code, which replaces the Code of Practice issued by Acas in Representatives where the post holder also undertakes additional 1998, is intended to provide such guidance. duties as a union representative. 17. The Many background employers have in place well established training 2. Since development the Employment programmes Protection for their Act employees. 1975, trade Union union Learning officials have had Representatives a statutory right should to reasonable liaise with their paid employers time off from to ensure employment that their to carry respective out trade training union activities duties complement to undertake one another trade union that training. the Union scope officials for duplication members is minimised. were also given a statutory right to reasonable unpaid time off when taking part in trade union activities. Payment In 1989 for restrictions time off were for introduced trade union the duties range of issues for which 18. paid An employer time off for who trade permits union duties union could representatives be claimed time to those off for covered by trade recognition union duties agreements must pay between them employers for the time off trade taken. unions. The Additionally employer must union pay duties either must the relate amount to the that official s the union own employer representative not, for example, would to have any associated earned had employer. they worked All the during time off the provisions time off taken were brought or, where together earnings sections vary with 168 the - 170 work of done, the Trade an Union amount calculated Labour Relations by reference (Consolidation) to the average Act 1992. hourly Section earnings 43 of the for Employment the work they Act are 2002 employed added a to new do. right for Union Learning Representatives to take paid time off during working hours to undertake their duties to undertake relevant training. 10 2 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

The calculation of pay for the time taken for trade union duties should be undertaken with due regard to the type of payment system applying to the union representative including, as appropriate, shift premia, performance related pay, bonuses commission earnings. Where pay is linked to the achievement of performance targets it may be necessary to adjust such targets to take account of the reduced time the representative has to achieve the desired performance. 1 19. There is no statutory requirement to pay for time off where the duty is carried out at a time when the union representative would not otherwise have been at work unless the union representative works flexible hours, such as night shift, but needs to perform representative duties during normal hours. Staff who work part time will be entitled to be paid if staff who work full time would be entitled to be paid. In all cases the amount of time off must be reasonable. Time off to accompany Workers at disciplinary or Grievance Hearings 20. Trade union representatives are statutorily entitled to take a reasonable amount of paid time off to accompany a worker at a disciplinary or grievance hearing so long as they have been certified by their union as being capable of acting as a worker s companion. The right to time off in these situations applies regardless of whether the certified person belongs to a recognised union or not although the worker being accompanied must be employed by the same employer. Time off for a union representative or a certified person to accompany a worker of another employer is a matter for voluntary agreement between the parties concerned. SECTioN 1 TiME off for TRadE UNioN duties 11

Section 2 Introduction Training of union representatives 1. Under section 199 the Trade Union Labour Relations in aspects of employment relations (Consolidation) Act 1992 Acas has a duty to provide practical guidance on the time off to be permitted by an employer: employee development (a) to a trade union official in accordance with section 168 of the Trade Union Labour Relations (Consolidation) Act 1992; Training is important for union representatives to enable them to carry out their duties effectively. Training should be available both to newly appointed (b) to a trade union member in accordance with section 170 of the to more established union representatives. It is desirable, from time to Trade Union Labour Relations (Consolidation) Act 1992. time where resources permit it, for joint training development activities between union representatives managers to occur. Section 199 of the Act, as amended by the Employment Act 2002, also provides for Acas to issue practical guidance on time off Entitlement training for Union Learning Representatives. 21. Employees who are union representatives of an independent This trade Code, union which recognised replaces by the their Code employer of Practice are issued to be by permitted Acas in 1998, reasonable is intended time to off provide during such working guidance. hours to undergo training in aspects of industrial relations relevant to the carrying out of The their background trade union duties. These duties must be concerned with: negotiations with the employer about matters which fall 2. Since the Employment Protection Act 1975, trade union officials have within section 178(2) TULR(C)A for which the union is had a statutory right to reasonable paid time off from employment to recognised to any extent for the purposes of collective carry out trade union duties to undertake trade union training. bargaining by the employer; or Union officials members were also given a statutory right to reasonable any other unpaid functions time off on when behalf taking of employees part in trade of the union employer activities. In 1989 which restrictions are related were to matters introduced falling on the within range section of issues 178(2) for which paid TULR(C)A time off for trade which union the duties employer could has be claimed agreed the to those union covered may by perform; recognition agreements between employers trade unions. Additionally matters associated union duties with must information relate to the official s consultation own employer concerning not, for example, collective to any redundancy associated employer. the Transfer All the time of off provisions Undertakings, were brought the together negotiation in sections of an 168 agreement - 170 of the under Trade Union Regulation Labour 9 of Relations the Transfer (Consolidation) of Undertakings Act 1992. (Protection Section 43 of of the Employees) Employment Regulations. Act 2002 added a new right for Union Learning Representatives to take paid time off during working hours to Matters falling within section 178(2) TULR(C)A are set out in paragraph undertake their duties to undertake relevant training. 13 above. 12 2 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

22. The Safety Representatives Safety Committees Regulations 1977 regulation 4(2)(b) requires that employers allow union health safety representatives to undergo training in aspects of their functions that is reasonable in all the circumstances. 2 Further advice on the training of health safety representatives is provided by the Health Safety Executive in their approved Code Guidance Consulting workers on health safety. This is not covered in this Acas Code. 23. Employees who are Trade Union Learning Representatives are also permitted reasonable time off during working hours to undergo training relevant to their functions as a Union Learning Representative. What is relevant employment relations training? 24. Training should be in aspects of employment relations relevant to the duties of a union representative. There is no one recommended syllabus for training as a union representative s duties will vary according to: the collective bargaining arrangements at the place of work, particularly the scope of the recognition or other agreement the structure of the union the role of the union representative the hling of proposed collective redundancies or the transfer of undertakings. 25. The training must also be approved by the Trades Union Congress or by the independent trade union of which the employee is a union representative. 26. Union representatives are more likely to carry out their duties effectively if they possess skills knowledge relevant to their duties. In particular, employers should be prepared to consider releasing union representatives for initial training in basic representational skills as soon as possible after their election or appointment, bearing in mind that suitable courses may be infrequent. Reasonable time off could also be considered, for example: SECTioN 2 TRaiNiNG of UNioN REPRESENTaTiVES 13

Introduction for training courses to develop the union representative s skills in representation, accompaniment, negotiation consultation for further training particularly where the union representative has special responsibilities, for example in collective redundancy 1. Under section 199 of the Trade Union Labour Relations transfer of undertakings circumstances (Consolidation) Act 1992 Acas has a duty to provide practical guidance for training on the courses time off to familiarise to be permitted or update by an union employer: representatives on issues reflecting the developing needs of the workforce they (a) represent to a trade union official in accordance with section 168 of the for Trade training Union where there Labour are Relations proposals (Consolidation) to change the structure Act 1992; topics of negotiation about matters for which the union is (b) recognised; to a trade union or where member significant in accordance changes in with the section organisation 170 of of the work are Trade being Union contemplated Labour Relations (Consolidation) Act 1992. for training where legal change may affect the conduct of Section employment 199 of the relations Act, as at amended the place of by work the Employment may require Act the 2002, also reconsideration provides for Acas of existing to issue agreements practical guidance on time off training for training for Union where Learning a union Representatives. representative undertakes the role of accompanying employees in grievance disciplinary hearings. This Code, which replaces the Code of Practice issued by Acas in 27. 1998, E-learning is intended tools, related to provide to the such role guidance. of union representatives, should be used where available appropriate. However, their best use is as an The additional background learning aid rather than as a replacement to attendance at approved trade union Trades Union Congress training courses. 2. Since Time the needs Employment to be given Protection during normal Act 1975, working trade hours union for union officials have had representatives a statutory right to take to reasonable advantage of paid e-learning time off where from employment it is available. to carry out trade union duties to undertake trade union training. Union officials members were also given a statutory right to Training for Union Learning Representatives reasonable unpaid time off when taking part in trade union activities. 28. In Employees 1989 restrictions who are were members introduced of an on independent the range of issues trade for union which paid recognised time off for by trade the employer union duties are could entitled be to claimed reasonable to those paid covered time by off recognition to undertake agreements the functions between of a employers Union Learning trade unions. Additionally Representative. union duties To qualify must for relate paid to time the official s the member own employer must be sufficiently not, for example, trained to to carry any associated out duties employer. as a learning All the time off provisions representative: were brought together in sections 168-170 of the Trade Union either at Labour the time Relations when their (Consolidation) trade union Act gives 1992. notice Section to 43 their of the employer Employment in writing Act 2002 that added they a are new a learning right for Union representative Learning of Representatives the trade union to take paid time off during working hours to undertake or within their six duties months of to that undertake date. relevant training. 14 2 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

29. In the latter case, the trade union is required to give the employer notice in writing that the employee will be undergoing such training when the employee has done so to give the employer notice of that fact. During the six month period in which he or she is undergoing this training, the Union Learning Representative must be allowed time off to perform their duties. It should be confirmed by the union in a letter that the training undertaken is sufficient to allow the Learning Representative to undertake their role it is good practice for the union to give details of the training which has been completed any previous training that has been taken into account. In the interests of good practice, the six month qualifying period may be extended, with agreement, to take into account any significant unforeseen circumstances such as prolonged absence from work due to ill health, pregnancy, bereavement or unavoidable delays in arranging an appropriate training course. 2 30. To satisfy this training requirement an employee will need to be able to demonstrate to their trade union that they have received sufficient training to enable them to operate competently in one or more of the following areas of activity relevant to their duties as a Union Learning Representative: analysing learning or training needs; this could for example include understing the different methods for identifying learning interests or needs, being able to effectively identify record individual learning needs or being able to draw up a plan to meet identified learning requirements. providing information advice about learning or training matters; including, for example, the development of communication interviewing skills knowledge of available opportunities, in order to be able to provide accurate information to members about learning opportunities within outside the workplace the ability to signpost members to other sources of advice guidance where additional support is needed, for example, basic skills tutors or fuller in depth professional career guidance. SECTioN 2 TRaiNiNG of UNioN REPRESENTaTiVES 15

Introduction arranging supporting learning training; for example, obtaining providing information on learning opportunities including e-learning where available, supporting encouraging members to access learning opportunities helping 1. Under section 199 of the Trade Union Labour Relations to develop improve local learning opportunities; (Consolidation) Act 1992 Acas has a duty to provide practical promoting guidance the on value the of time learning off to be permitted training; by an employer: some examples of this activity could be, understing current (a) initiatives to a trade for union the development official in accordance of learning with section skills in 168 the of the workplace, Trade Union promoting Labour the value Relations of learning (Consolidation) to members Act 1992; within trade union networks structures, working with employers to (b) meet to a trade the learning union member skill needs in accordance of both individuals with section 170 the of the organisation, Trade Union appreciating Labour Relations the value (Consolidation) of learning agreements Act 1992. how they may be developed. Section 199 of the Act, as amended by the Employment Act 2002, 31. also An employee provides for could Acas demonstrate to issue practical to their trade guidance union on that time they off have training received for sufficient Union Learning training to Representatives. enable them to operate competently in one or more of these areas of activity by: This completing Code, which a training replaces course the approved Code of Practice by the Trades issued Union by Acas in 1998, Congress is intended or by to the provide independent such guidance. trade union of which the employee is a Union Learning Representative, or by The background showing that they have previously gained the relevant expertise 2. Since experience the Employment to operate Protection effectively Act as a 1975, learning trade representative. union officials have had a statutory right to reasonable paid time off from employment to carry In the out latter trade case, union previous duties experience to undertake expertise trade union gained training. areas Union such as officials teaching, training, members counselling, were also providing given a statutory careers advice right to reasonable guidance or unpaid human time resource off when development, taking part may in trade well be union relevant, activities. as In may 1989 periods restrictions of extensive were introduced on-the-job training on the range experience of issues for gained which in paid shadowing time off an for experienced trade union Union duties Learning could be Representative. claimed to those covered by recognition agreements between employers trade unions. 32. Reasonable time off should also be considered for further training to Additionally union duties must relate to the official s own employer help Union Learning Representatives develop their skills not, for example, to any associated employer. All the time off competencies. provisions were brought together in sections 168-170 of the Trade 33. Union Although not Labour required Relations by law (Consolidation) it is recognised Act that 1992. there would Section be 43 clear of the advantages Employment both Act to the 2002 individual added a new the right organisation for Union if Learning training Representatives undertaken leads to to take a recognised paid time qualification off during working stard. hours to undertake their duties to undertake relevant training. 16 2 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

Payment for time off for training 34. An employer who permits union representatives or Union Learning Representatives time off to attend relevant training, must pay them for the time off taken. The employer must pay either the amount that the union representative or the Union Learning Representative would have earned had they worked during the time off taken or, where earnings vary with the work done, an amount calculated by reference to the average hourly earnings for the work they are employed to do. 2 The calculation of pay for the time taken for training should be undertaken with due regard to the type of payment system applying to the union representative Union Learning Representative including, as appropriate, shift premia, performance related pay, bonuses commission earnings. Where pay is linked to the achievement of performance targets it may be necessary to adjust such targets to take account of the reduced time the representative has to achieve the desired performance. 35. There is no statutory requirement to pay for time off where training is undertaken at a time when the union representative or Union Learning Representative would not otherwise have been at work unless the union representative or Union Learning Representative works flexible hours, such as night shift, but needs to undertake training during normal hours. Staff who work part time will be entitled to be paid if staff who work full time would be entitled to be paid. In all cases, the amount of time off must be reasonable. SECTioN 2 TRaiNiNG of UNioN REPRESENTaTiVES 17

Section 3 Introduction Time off for trade union activities 1. Under section 199 of the Trade Union Labour Relations (Consolidation) Act 1992 Acas has a duty to provide practical guidance on the time off to be permitted by an employer: To operate effectively democratically, trade unions need the active participation (a) to a trade of members. union official It can in also accordance be very much with in section employers 168 of interests the that such Trade participation Union is assured Labour Relations help is (Consolidation) given to promote Act effective 1992; communication between union representatives members in the workplace. (b) to a trade union member in accordance with section 170 of the Trade Union Labour Relations (Consolidation) Act 1992. Entitlement Section 199 of the Act, as amended by the Employment Act 2002, 36. An employee who is a member of an independent trade union also provides for Acas to issue practical guidance on time off recognised by the employer in respect of that description of training for Union Learning Representatives. employee is to be permitted reasonable time off during working hours to take part in any trade union activity. An employee who This Code, which replaces the Code of Practice issued by Acas in is a member of an independent recognised trade union is 1998, is intended to provide such guidance. also permitted to take reasonable time off during working hours for the purposes of accessing the services of a Union Learning The Representative background (provided those services are services for which 2. Since the Union the Employment Learning Representative Protection Act 1975, is entitled trade union to time officials off). have had a statutory right to reasonable paid time off from employment to What carry are out examples trade union of duties trade union to undertake activities? trade union training. 37. Union The activities officials of a trade members union were member also can given be, a for statutory example: right to reasonable unpaid time off when taking part in trade union activities. attending workplace meetings to discuss vote on the outcome In 1989 restrictions were introduced on the range of issues for which of negotiations with the employer. Where relevant, with the paid time off for trade union duties could be claimed to those covered employer s agreement, this can include attending such workplace by recognition agreements between employers trade unions. meetings at the employer s neighbouring locations. Additionally union duties must relate to the official s own employer meeting not, for full example, time officers to any to associated discuss issues employer. relevant All to the the time workplace off provisions voting in were union brought elections together in sections 168-170 of the Trade Union having access Labour to Relations services provided (Consolidation) by a Union Act Learning 1992. Section 43 of the representative. Employment Act 2002 added a new right for Union Learning Representatives to take paid time off during working hours to undertake their duties to undertake relevant training. 18 2 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

38. Where the member is acting as a representative of a recognised union, activities can be, for example, taking part in: branch, area or regional meetings of the union where the business of the union is under discussion meetings of official policy making bodies such as the executive committee or annual conference meetings with full time officers to discuss issues relevant to the workplace. 3 39. There is no right to time off for trade union activities which themselves consist of industrial action. Payment for time off for trade union activities 40. Paragraphs 18 19 set out the statutory entitlement to payment for time off to undertake trade union duties. 41. There is no statutory requirement that union members or representatives be paid for time off taken on trade union activities. Nevertheless employers may want to consider payment in certain circumstances, for example to ensure that workplace meetings are fully representative or to ensure that employees have access to services provided by Union Learning Representatives. SECTioN 3 TiME off for TRadE UNioN activities 19

Section 4 Introduction The responsibilities of employers trade unions 1. Under section 199 of the Trade Union Labour Relations (Consolidation) Act 1992 Acas has a duty to provide practical guidance on the time off to be permitted by an employer: Employers, trade unions, union representatives line managers should work (a) together a trade to ensure union official that time in off accordance provisions, with including section training, 168 of operate the effectively Trade Union for mutual Labour benefit. Relations Union representatives (Consolidation) need Act to 1992; be able to communicate with management, each other, their trade union employees. (b) to a To trade do union so they member need to in be accordance able to use with appropriate section 170 of the communication Trade Union media Labour other facilities. Relations (Consolidation) Act 1992. General Section considerations 199 of the Act, as amended by the Employment Act 2002, also provides for Acas to issue practical guidance on time off 42. The amount frequency of time off should be reasonable in training for Union Learning Representatives. all the circumstances. Although the statutory provisions apply to all employers without exception as to size type of business or service, This Code, which replaces the Code of Practice issued by Acas in trade unions should be aware of the wide variety of difficulties 1998, is intended to provide such guidance. operational requirements to be taken into account when seeking or agreeing arrangements for time off, for example: The background the size of the organisation the number of workers 2. Since the the production Employment process Protection Act 1975, trade union officials have had a statutory right to reasonable paid time off from employment to the need to maintain a service to the public carry out trade union duties to undertake trade union training. Union the officials need for safety members security were at also all times. given a statutory right to 43. reasonable Employers unpaid in turn should time off have when in mind taking the part difficulties in trade for union trade activities. union In representatives 1989 restrictions were members introduced ensuring on the effective range of representation issues for which paid communications time off for trade with, union for example: duties could be claimed to those covered by recognition agreements between employers trade unions. shift workers Additionally union duties must relate to the official s own employer part-time workers not, for example, to any associated employer. All the time off provisions home workers were brought together in sections 168-170 of the Trade Union teleworkers Labour or workers Relations not (Consolidation) working in a fixed Act location 1992. Section 43 of the those Employment employed Act at 2002 dispersed added locations a new right for Union Learning Representatives workers with particular to take paid domestic time off commitments during working including hours those to on undertake leave for their reasons duties of maternity, to undertake paternity relevant or care training. responsibilities workers with special needs such as disabilities or language requirements. 202 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

44. For time off arrangements to work satisfactorily trade unions should: ensure that union representatives are aware of their role, responsibilities functions inform management, in writing, as soon as possible of appointments or resignations of union representatives ensure that union representatives receive any appropriate written credentials promptly ensure that employers receive details of the functions of union representatives where they carry out special duties or functions. 4 45. Employers should ensure that, where necessary, work cover /or work load reductions are provided when time off is required. This can include the allocation of duties to other employees, rearranging work to a different time or a reduction in workloads. 46. While there is no statutory right for facilities for union representatives, except for representatives engaged in duties related to collective redundancies the Transfer of Undertakings, employers should, where practical, make available to union representatives the facilities necessary for them to perform their duties efficiently communicate effectively with their members, colleague union representatives full-time officers. Where resources permit the facilities should include: accommodation for meetings which could include provision for Union Learning Representatives a union member(s) to meet to discuss relevant training matters access to a telephone other communication media used or permitted in the workplace such as email, intranet internet the use of noticeboards where the volume of the union representative s work justifies it, the use of dedicated office space confidential space where an employee involved in a grievance or disciplinary matter can meet their representative or to discuss other confidential matters access to members who work at a different location access to e-learning tools where computer facilities are available. SECTioN 4 RESPoNSiBiLiTiES of EMPLoYERS and TRadE UNioNS 21

Introduction 47. When using facilities provided by the employer for the purposes of communication with their members or their trade union, union representatives must comply with agreed procedures both in respect of the use of such facilities also in respect of access to use of 1. Under section 199 of the Trade Union Labour Relations company information. The agreed procedures will be either those (Consolidation) Act 1992 Acas has a duty to provide practical agreed between the union the employer as part of an agreement guidance on the time off to be permitted by an employer: on time off (see section 6) or comply with general rules applied to all employees in the organisation. In particular, union representatives must (a) to a trade union official in accordance with section 168 of the respect maintain the confidentiality of information they are given Trade Union Labour Relations (Consolidation) Act 1992; access to where, the disclosure would seriously harm the functioning of, or would be prejudicial to, the employer s business interests. The (b) to a trade union member in accordance with section 170 of the disclosure of information for collective bargaining purposes is covered Trade Union Labour Relations (Consolidation) Act 1992. by the Acas Code of Practice on that topic. Union representatives should underst that unauthorised publication risks damaging the Section 199 of the Act, as amended by the Employment Act 2002, employer s business, straining relations with the representative body also provides for Acas to issue practical guidance on time off concerned, possible breaches of individual contracts of employment training for Union Learning Representatives., in extreme cases such as unauthorised publication of pricesensitive information, the commission of criminal offences. This Code, which replaces the Code of Practice issued by Acas in 48. 1998, Union is representatives intended to provide will have such legitimate guidance. expectations that they their members are entitled to communicate without intrusion in the The form background of monitoring by their employer. Rules concerning the 2. Since confidentiality the Employment of communications Protection Act involving 1975, union trade representatives union officials have had should a statutory be agreed right between to reasonable the employer paid time the off from union. employment Guidance on to carry this is out set trade out in union paragraphs duties 49 to undertake 57 below. trade union training. Union officials members were also given a statutory right to 49. Employers must respect the confidential sensitive nature of reasonable unpaid time off when taking part in trade union activities. communications between union representatives their members In 1989 restrictions were introduced on the range of issues for which trade union. They should not normally carry out regular or rom paid time off for trade union duties could be claimed to those covered monitoring of union emails. Only in exceptional circumstances may by recognition agreements between employers trade unions. employers require access to communications but such access should Additionally union duties must relate to the official s own employer be subject to the general rules set out in statute the Employment not, for example, to any associated employer. All the time off Practices Code issued by the Information Commissioner s Office. In the provisions were brought together in sections 168-170 of the Trade context of the Data Protection Act 1998 whether a person is a member Union Labour Relations (Consolidation) Act 1992. Section 43 of of a trade union or not is defined as sensitive personal data. This also the Employment Act 2002 added a new right for Union Learning applies to data concerning individuals, for example communications Representatives to take paid time off during working hours to concerned with possible or actual grievance disciplinary issues. undertake their duties to undertake relevant training. There are therefore very strict provisions on how such data can be used monitored in compliance with the law. 222 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

Requesting time off 50. Trade union representatives members requesting time off to pursue their duties or activities or to access the services of a Union Learning Representative should provide management, especially their line manager, with as much notice as practically possible concerning: the purpose of such time off, while preserving personal confidential information relating to individuals in grievance or disciplinary matters the intended location the timing duration of time off required. 4 51. Union representatives should minimise business disruption by being prepared to be as flexible as possible in seeking time off in circumstances where the immediate or unexpected needs of the business make it difficult for colleagues or managers to provide cover for them in their absence. Equally employers should recognise the mutual obligation to allow union representatives to undertake their duties. 52. In addition, union representatives who request paid time off to undergo relevant training should: give at least a few weeks notice to management of nominations for training courses provide details of the contents of the training course. 53. When deciding whether requests for paid time off should be granted, consideration would need to be given as to their reasonableness, for example to ensure adequate cover for safety or to safeguard the production process or the provision of service. Consideration should also be given to allowing Union Learning Representatives access to a room in which they can discuss training in a confidential manner with an employee. Similarly, managers unions should seek to agree a mutually convenient time which minimises the effect on production or services. Where workplace meetings are requested, consideration should be given to holding them, for example: towards the end of a shift or the working week before or after a meal break. SECTioN 4 RESPoNSiBiLiTiES of EMPLoYERS and TRadE UNioNS 23

Introduction 54. For their part line managers should be familiar with the rights duties of union representatives regarding time off. They should be encouraged to take reasonable steps as necessary in the planning management of representatives time off the provision of cover or 1. Under section 199 of the Trade Union Labour Relations work load reduction, taking into account the legitimate needs of such (Consolidation) Act 1992 Acas has a duty to provide practical union representatives to discharge their functions receive training guidance on the time off to be permitted by an employer: efficiently effectively. 55. (a) Employers to a trade need union to official consider in each accordance application with for section time off 168 on of its the merits; they Trade should Union also consider Labour the Relations reasonableness (Consolidation) of the request Act 1992; in relation to agreed time off already taken or in prospect. (b) to a trade union member in accordance with section 170 of the Trade Union Labour Relations (Consolidation) Act 1992. Section 199 of the Act, as amended by the Employment Act 2002, also provides for Acas to issue practical guidance on time off training for Union Learning Representatives. This Code, which replaces the Code of Practice issued by Acas in 1998, is intended to provide such guidance. The background 2. Since the Employment Protection Act 1975, trade union officials have had a statutory right to reasonable paid time off from employment to carry out trade union duties to undertake trade union training. Union officials members were also given a statutory right to reasonable unpaid time off when taking part in trade union activities. In 1989 restrictions were introduced on the range of issues for which paid time off for trade union duties could be claimed to those covered by recognition agreements between employers trade unions. Additionally union duties must relate to the official s own employer not, for example, to any associated employer. All the time off provisions were brought together in sections 168-170 of the Trade Union Labour Relations (Consolidation) Act 1992. Section 43 of the Employment Act 2002 added a new right for Union Learning Representatives to take paid time off during working hours to undertake their duties to undertake relevant training. 242 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

Section 5 Agreements on time off To take account of the wide variety of circumstances problems which can arise, there can be positive advantages for employers trade unions in establishing agreements on time off in ways that reflect their own situations. It should be borne in mind, however, that the absence of a formal agreement on time off does not in itself deny an individual any statutory entitlement. Nor does any agreement supersede statutory entitlement to time off. 5 56. A formal agreement can help to: provide clear guidelines against which applications for time off can be determined establish realistic expectations on the part of union representatives managers avoid misundersting facilitate better planning ensure fair reasonable treatment. 57. Agreements should specify: the amount of time off permitted recognising that this will vary according the fluctuations in dem on the union representatives role the occasions on which time off can be taken including meetings with management, meetings with other union representatives, time needed to prepare for meetings, communicating with members their trade union, time to undertake e-learning if appropriate to attend approved training events in what circumstances time off will be paid arrangements for taking time off at short notice how pay is to be calculated to whom time off will be paid the facilities equipment to be provided limits to their use, if any SECTioN 5 agreements on TiME off 25

Introduction arrangements for ensuring confidentiality of communications involving union representatives. These should include agreed rules on the use of data the exceptional cases where monitoring may be necessary, for example in cases of suspected illegal use, 1. Under section 199 of the Trade Union Labour Relations specifying the circumstances where such monitoring may be (Consolidation) Act 1992 Acas has a duty to provide practical undertaken the means by which it is to be done, for example by guidance on the time off to be permitted by an employer: company IT or security personnel the role of line managers in granting permission to legitimate (a) to a trade union official in accordance with section 168 of the requests for time off, where appropriate practical, ensuring Trade Union Labour Relations (Consolidation) Act 1992; that adequate cover or work load reductions are provided (b) the to a procedure trade union for member requesting in time accordance off with section 170 of the the Trade procedure Union for resolving Labour Relations grievances (Consolidation) about time off. Act 1992. 58. In addition, it would be sensible for agreements to make clear: Section 199 of the Act, as amended by the Employment Act 2002, also arrangements provides for for Acas the to appropriate issue practical payment guidance to be made on time when off time training off relates for Union in part Learning to union Representatives. duties in part to union activities how in what circumstances payment might be made to shift This Code, part which time employees replaces the undertaking Code of trade Practice union issued duties by outside Acas in 1998, their is normal intended working to provide hours. such guidance. 59. Agreements for time off other facilities for union representation The should background be consistent with wider agreements which deal with such 2. Since matters the as Employment constituencies, Protection number Act of representatives 1975, trade union officials the election have had of officials. a statutory right to reasonable paid time off from employment to carry out trade union duties to undertake trade union training. 60. Union The operation officials of time members off agreements were also or given arrangements a statutory should right be to jointly reasonable reviewed by unpaid the parties time from off when time taking to time. part in trade union activities. In 1989 restrictions were introduced on the range of issues for which 61. In smaller organisations, it might be thought more appropriate for paid time off for trade union duties could be claimed to those covered employers unions to reach understings about how requests for by recognition agreements between employers trade unions. time off are to be made; more broadly to agree flexible Additionally union duties must relate to the official s own employer arrangements which can accommodate their particular circumstances. not, for example, to any associated employer. All the time off provisions were brought together in sections 168-170 of the Trade Union Labour Relations (Consolidation) Act 1992. Section 43 of the Employment Act 2002 added a new right for Union Learning Representatives to take paid time off during working hours to undertake their duties to undertake relevant training. 262 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

Section 6 Industrial action 62. Employers unions have a responsibility to use agreed procedures to settle problems avoid industrial action. Time off may therefore be permitted for this purpose particularly where there is a dispute. There is no right to time off for trade union activities which themselves consist of industrial action. However, where a union representative is not taking part in industrial action but represents members involved, normal arrangements for time off with pay for the union representatives should apply. Section 7 Resolving disputes There is advantage in agreeing ways in which disputes concerning time off arrangements, including training access to facilities, can be settled any appropriate procedures to resolve disputes should be followed. 6 7 63. Every effort should be made to resolve any dispute or grievance in relation to time off work for union duties or activities. Where the grievance remains unresolved, union representatives, Union Learning Representatives or members have a right to complain to an employment tribunal that their employer has failed to allow reasonable time off or, in the case of a Union Learning Representative or union representative, has failed to pay for all or part of the time off taken. Such complaints may be resolved by conciliation by Acas or through a compromise agreement, if this is successful, no tribunal hearing will be necessary. Acas assistance may also be sought without the need for a formal complaint to a tribunal. SECTioN 7 RESoLViNG disputes 27

Annex Introduction The law on time off for trade union duties activities 1. Under section 199 of the Trade Union Labour Relations (Consolidation) Act 1992 Acas has a duty to provide practical Section guidance 168 on of the the time Trade off to Union be permitted Labour by an employer: Relations (Consolidation) act 1992, states: (1) (a) An to employer a trade union shall permit official an in employee accordance of his with who section is an official 168 of thean independent Trade Union trade union Labour recognised Relations by (Consolidation) the employer to Act take 1992; time off during his working hours for the purpose of carrying out any duties of (b) his, to as a trade such an union official, member concerned in accordance with with section 170 of the (a) Trade negotiations Union with Labour the employer Relations related (Consolidation) to or connected Act 1992. with matters falling within section 178(2) (collective bargaining) in Section relation 199 of to the which Act, the as trade amended union by is recognised the Employment by the Act employer, 2002, or also (b) provides the performance for Acas on to behalf issue practical of employees guidance of the on employer time off of training functions for Union related Learning to or connected Representatives. with matters falling within that provision which the employer has agreed may be so performed by This Code, the trade which union, replaces or the Code of Practice issued by Acas in 1998, is intended to provide such guidance. (c) receipt of information from the employer consultation by the employer under section 188 (redundancies) or under the Transfer The background of Undertakings (Protection of Employment) Regulations 2006, or 2. Since (d) negotiations the Employment with a Protection view to entering Act 1975, into trade an agreement union officials under have had a regulation statutory 9 right of the to reasonable Transfer of Undertakings paid time off (Protection from employment of to carry Employment) out trade union Regulations duties 2006 to undertake that applies trade to employees union training. of the Union employer, officials or members were also given a statutory right to reasonable (e) the performance unpaid time on off behalf when of taking employees part in of trade the employer union activities. of In 1989 functions restrictions related were to or introduced connected on with the the range making of issues of an for agreement which paid time under off that for regulation. trade union duties could be claimed to those covered by recognition agreements between employers trade unions. (2) Additionally He shall also union permit duties such must an employee relate to to the take official s time off own during employer his working not, for hours example, for the to purpose any associated of undergoing employer. training All in the aspects time off provisions industrial relations were brought together in sections 168-170 of the Trade Union (a) relevant Labour to the Relations carrying out (Consolidation) of such duties Act as 1992. are mentioned Section 43 in of the Employment subsection (1), Act 2002 added a new right for Union Learning Representatives (b) approved by to the take Trades paid Union time off Congress during working or by the hours independent to undertake trade their union duties of which he to is undertake an official. relevant training. 282 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

(3) The amount of time off which an employee is to be permitted to take under this section the purposes for which, the occasions on which any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS. (4) An employee may present a complaint to an employment tribunal that his employer has failed to permit him to take time off as required by this section. Section 168a of the Trade Union Labour Relations (Consolidation) act 1992 states (1) An employer shall permit an employee of his who is (a) a member of an independent trade union recognised by the employer, (b) a learning representative of the trade union, to take time off during his working hours for any of the following purposes. (2) The purposes are (a) carrying on any of the following activities in relation to qualifying members of the trade union (i) analysing learning or training needs, (ii) providing information advice about learning or training matters, (iii) arranging learning or training, (iv) promoting the value of learning or training, (b) consulting the employer about carrying on any such activities in relation to such members of the trade union, (c) preparing for any of the things mentioned in paragraphs (a) (b). (3) Subsection (1) only applies if (a) the trade union has given the employer notice in writing that the employee is a learning representative of the trade union, (b) the training condition is met in relation to him. annex 29

Introduction (4) The training condition is met if (a) the employee has undergone sufficient training to enable him to carry on the activities mentioned in subsection (2), the trade union has given the employer notice in writing of that fact, 1. Under section 199 of the Trade Union Labour Relations (Consolidation) (b) the trade union Act 1992 has in Acas the last has six a duty months to provide given the practical employer guidance notice on in the writing time that off to the be employee permitted will by be an undergoing employer: such training, or (a) (c) to within a trade six union months official the in trade accordance union giving with section the employer 168 of notice the in Trade writing Union that the employee Labour Relations will be undergoing (Consolidation) such training, Act 1992; the employee has done so, the trade union has given the (b) to employer a trade union notice member of that fact. in accordance with section 170 of the Trade Union Labour Relations (Consolidation) Act 1992. (5) Only one notice under subsection (4)(b) may be given in respect of any one employee. Section 199 of the Act, as amended by the Employment Act 2002, (6) also References provides in for subsection Acas to issue (4) to practical sufficient training guidance to on carry time out off the training activities for mentioned Union Learning subsection Representatives. (2) are to training that is sufficient for those purposes having regard to any relevant provision of a Code of This Practice Code, issued which by replaces ACAS or the the Code Secretary of Practice of State. issued by Acas in 1998, is intended to provide such guidance. (7) If an employer is required to permit an employee to take time off under The subsection background (1), he shall also permit the employee to take time off during 2. Since his working the Employment hours for the Protection following Act purposes 1975, trade union officials have had (a) a undergoing statutory right training to reasonable which is relevant paid time to his off functions from employment as a learning to carry representative, out trade union duties to undertake trade union training. Union (b) where officials the trade members union has were in the also last given six months a statutory given right the to reasonable employer unpaid notice time under off when subsection taking (4)(b) part in in relation trade union to the activities. In 1989 employee, restrictions undergoing were introduced such training on the as range is mentioned of issues in subsection for which paid time (4)(a). off for trade union duties could be claimed to those covered by recognition agreements between employers trade unions. (8) The amount of time off which an employee is to be permitted to take Additionally union duties must relate to the official s own employer under this section the purposes for which, the occasions on which not, for example, to any associated employer. All the time off any conditions subject to which time off may be so taken are those provisions were brought together in sections 168-170 of the Trade that are reasonable in all the circumstances having regard to any Union Labour Relations (Consolidation) Act 1992. Section 43 of relevant provision of a Code of Practice issued by ACAS or the the Employment Act 2002 added a new right for Union Learning Secretary of State. Representatives to take paid time off during working hours to (9) undertake An employee their may duties present a to complaint undertake to relevant employment training. tribunal that his employer has failed to permit him to take time off as required by this section. 30 2 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

(10) In subsection (2)(a), the reference to qualifying members of the trade union is to members of the trade union (a) who are employees of the employer of a description in respect of which the union is recognised by the employer, (b) in relation to whom it is the function of the union learning representative to act as such. (11) For the purposes of this section, a person is a learning representative of a trade union if he is appointed or elected as such in accordance with its rules. Section 169 of the Trade Union Labour Relations (Consolidation) act 1992 states: (1) An employer who permits an employee to take time off under section 168 or 168A shall pay him for the time taken off pursuant to the permission. (2) Where the employee s remuneration for the work he would ordinarily have been doing during that time does not vary with the amount of work done, he shall be paid as if he had worked at that work for the whole of that time. (3) Where the employee s remuneration for the work he would ordinarily have been doing during that time varies with the amount of work done, he shall be paid an amount calculated by reference to the average hourly earnings for that work. The average hourly earnings shall be those of the employee concerned or, if no fair estimate can be made of those earnings, the average hourly earnings for work of that description of persons in comparable employment with the same employer or, if there are no such persons, a figure of average hourly earnings which is reasonable in the circumstances. (4) A right to be paid an amount under this section does not affect any right of an employee in relation to remuneration under his contract of employment, but (a) any contractual remuneration paid to an employee in respect of a period of time off to which this section applies shall go towards discharging any liability of the employer under this section in respect of that period, annex 31

Introduction (b) any payment under this section in respect of a period shall go towards discharging any liability of the employer to pay contractual remuneration in respect of that period. (5) 1. Under An employee section may 199 present of the Trade a complaint Union to an Labour employment Relations tribunal that (Consolidation) his employer has Act failed 1992 to Acas pay him has in a accordance duty to provide with this practical section. guidance on the time off to be permitted by an employer: Section 170 of the Trade Union Labour Relations (Consolidation) (a) to a trade union act 1992 official states: in accordance with section 168 of the Trade Union Labour Relations (Consolidation) Act 1992; (1) An employer shall permit an employee of his who is a member of an independent trade union recognised by the employer in respect of that (b) to a trade union member in accordance with section 170 of the description of employee to take time off during his working hours for Trade Union Labour Relations (Consolidation) Act 1992. the purpose of taking part in Section (a) any 199 activities of the of Act, the as union, amended by the Employment Act 2002, also (b) provides any activities for Acas in relation to issue to which practical the employee guidance is on acting time off as a training representative for Union Learning of the union. Representatives. (2) The right conferred by subsection (1) does not extend to activities This Code, which replaces the Code of Practice issued by Acas in which themselves consist of industrial action, whether or not in 1998, is intended to provide such guidance. contemplation or furtherance of a trade dispute. (2A) The The background right conferred by subsection (1) does not extend to time off for 2. Since the purpose the Employment of acting as, Protection or having Act access 1975, to trade services union provided officials by, have a had learning a statutory representative right to reasonable of a trade union. paid time off from employment to carry out trade union duties to undertake trade union training. (2B) An employer shall permit an employee of his who is a member of an Union officials members were also given a statutory right to independent trade union recognised by the employer in respect of that reasonable unpaid time off when taking part in trade union activities. description of employee to take time off during his working hours for In 1989 restrictions were introduced on the range of issues for which the purpose of having access to services provided by a person in his paid time off for trade union duties could be claimed to those covered capacity as a learning representative of the trade union. by recognition agreements between employers trade unions. (2C) Additionally Subsection union (2B) only duties applies must if relate the learning to the representative official s own employer would be entitled not, to for time example, off under to any subsection associated (1) of employer. section 168A All the for time the purpose off provisions of carrying were on in brought relation together the employee in sections activities 168 - of 170 the of kind the Trade Union mentioned Labour in subsection Relations (2) of (Consolidation) that section. Act 1992. Section 43 of the Employment Act 2002 added a new right for Union Learning (3) Representatives The amount of time to take off which paid time an employee off during is working to be permitted hours to to take undertake this their section duties the purposes to undertake for which, relevant the training. occasions on which any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS. 32 2 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

(4) An employee may present a complaint to an employment tribunal that his employer has failed to permit him to take time off as required by this section. (5) For the purposes of this section (a) a person is a learning representative of a trade union if he is appointed or elected as such in accordance with its rules, (b) a person who is a learning representative of a trade union acts as such if he carries on the activities mentioned in section 168A(2) in that capacity. Section 178(1) (3) of the Trade Union Labour Relations (Consolidation) act 1992, states: (1) In this Act collective agreement means any agreement or arrangement made by or on behalf of one or more trade unions one or more employers or employers associations relating to one or more of the matters specified below; collective bargaining means negotiations relating to or connected with one or more of those matters. (2) The matters referred to above are (a) terms conditions of employment, or the physical conditions in which any workers are required to work; (b) engagement or non engagement, or termination or suspension of employment or the duties of employment, of one or more workers; (c) allocation of work or the duties of employment as between workers or groups of workers; (d) matters of discipline; (e) a worker s membership or non membership of a trade union; (f) facilities for officials of trade unions; (g) machinery for negotiation or consultation, other procedures, relating to any of the above matters, including the recognition by employers or employers associations of the right of a trade union to represent workers in such negotiation or consultation or in the carrying out of such procedures. annex 33

Introduction (3) In this Act recognition, in relation to a trade union, means the recognition of the union by an employer, or two or more associated employers, to any extent, for the purpose of collective bargaining; recognised other related expressions shall be construed 1. Under section 199 of the Trade Union Labour Relations accordingly. (Consolidation) Act 1992 Acas has a duty to provide practical guidance on the time off to be permitted by an employer: Section 173(1) of the Trade Union Labour Relations (Consolidation) act 1992, states: (a) to a trade union official in accordance with section 168 of the For the Trade purposes Union of sections Labour 168, Relations 168A (Consolidation) 170 the working Act hours 1992; of employee shall be taken to be any time when in accordance with his contract (b) to of a employment trade union he member is required in accordance to be at work. with section 170 of the Trade Union Labour Relations (Consolidation) Act 1992. Section 119 of the Trade Union Labour Relations (Consolidation) Section 199 of act the Act, 1992 as amended states: by the Employment Act 2002, official also means provides for Acas to issue practical guidance on time off training for Union Learning Representatives. (a) an officer of the union or of a branch or section of the union, or This Code, which replaces the Code of Practice issued by Acas in (b) a person elected or appointed in accordance with the rules of the 1998, is intended to provide such guidance. union to be a representative of its members or of some of them, The includes background a person so elected or appointed who is an employee of the same 2. Since employer the Employment as the members Protection or one Act or more 1975, of trade the members union officials whom have he is to represent. had a statutory right to reasonable paid time off from employment to carry out trade union duties to undertake trade union training. Union officials members were also given a statutory right to reasonable unpaid time off when taking part in trade union activities. In 1989 restrictions were introduced on the range of issues for which paid time off for trade union duties could be claimed to those covered by recognition agreements between employers trade unions. Additionally union duties must relate to the official s own employer not, for example, to any associated employer. All the time off provisions were brought together in sections 168-170 of the Trade Union Labour Relations (Consolidation) Act 1992. Section 43 of the Employment Act 2002 added a new right for Union Learning Representatives to take paid time off during working hours to undertake their duties to undertake relevant training. 34 2 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

annex 35

Introduction 1. Under section 199 of the Trade Union Labour Relations (Consolidation) Act 1992 Acas has a duty to provide practical guidance on the time off to be permitted by an employer: (a) to a trade union official in accordance with section 168 of the Trade Union Labour Relations (Consolidation) Act 1992; (b) to a trade union member in accordance with section 170 of the Trade Union Labour Relations (Consolidation) Act 1992. Section 199 of the Act, as amended by the Employment Act 2002, also provides for Acas to issue practical guidance on time off training for Union Learning Representatives. This Code, which replaces the Code of Practice issued by Acas in 1998, is intended to provide such guidance. The background 2. Since the Employment Protection Act 1975, trade union officials have had a statutory right to reasonable paid time off from employment to carry out trade union duties to undertake trade union training. Union officials members were also given a statutory right to reasonable unpaid time off when taking part in trade union activities. In 1989 restrictions were introduced on the range of issues for which paid time off for trade union duties could be claimed to those covered by recognition agreements between employers trade unions. Additionally union duties must relate to the official s own employer not, for example, to any associated employer. All the time off provisions were brought together in sections 168-170 of the Trade Union Labour Relations (Consolidation) Act 1992. Section 43 of the Employment Act 2002 added a new right for Union Learning Representatives to take paid time off during working hours to undertake their duties to undertake relevant training. 36 2 CodE CODE of OF PRaCTiCE PRACTICE 3 TiME TIME off OFF for FOR TRadE TRADE UNioN UNION duties DUTIES and AND activities ACTIVITIES

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