MiP is a national branch of UNISON which is recognised by NHS employers for collective bargaining purposes. MiP reps and link members have the right to reasonable paid time off to carry out trade union duties or undergo training, as set out in sections 168 and 169 of the Trade Union and Labour Relations (Consolidation) Act 1992 and ACAS Code of Practice.
Trade union ‘duties’ as an ‘official’
To qualify for time off, trade unions duties must be concerned with:
- negotiations regarding collective bargaining matters;
- performance of functions on behalf of employees related to collective bargaining
- collective information and consultation under collective redundancies legislation and TUPE (and ‘relevant insolvency proceedings’ under TUPE).
The ACAS Code gives the following examples of duties in relation to negotiating:
- preparing for negotiations, including attending relevant meetings
- informing members of progress and outcomes;
- preparing for meetings with employer about matters for which the union has only representational (as opposed to negotiating) rights.
It’s important to establish whether a trade union official is entitled to take part in a committee or other meeting as part of their duties as an official. If they are, they may be entitled to paid time off.
An official attending a union meeting to consider proposals for strike action may amount to the performance of a union ‘duty’. However, refusal to grant paid time off to plan industrial action may be regarded as reasonable.
Training and newly appointed Officials
Officials are entitled to paid time off to undergo training in collective bargaining matters relevant to their duties. The Code says that relevant training may include:
- collective bargaining arrangements at work;
- the union’s structure
- the official’s role within the union
- the handling any proposed collective redundancies or TUPE transfers.
The Code states that employers should consider allowing new officials reasonable time off for training in basic representational skills as soon as possible.
‘Reasonable’ time off
Trade union officials have the right is to ‘reasonable’ time off during ‘working hours’. Under TULRCA, the amount of permitted time off, the purpose of it, the occasions on which it may be taken and any other conditions are those that are ‘reasonable in all the circumstances’, having regard to the ACAS Code of Practice. These criteria may be negotiated in a Facilities Agreement.
The Code suggest that in claiming facilities time, the union should consider:
- the size of employer and workforce
the delivery process for the service
- the need to maintain delivery of the service
- the need to maintain health and safety standards
Employers should also consider issues the union my face, such as:
- shift patterns
- people employed at dispersed work locations
- workers with particular domestic commitments, including those on leave for maternity, paternity or care responsibilities.
The Code directs trade union officials to provide management with as much notice as ‘practically possible’ of the purpose of the time off, the intended location, the duties to be carried out and the timing and duration of the request. If the official’s ordinary pay doesn’t vary with the amount of work done, they should be paid as if they had worked the time off. If their pay does vary according to hours worked, they are entitled to average hourly earnings for the time off.
Facilities agreements will usually set out the agreed terms on which time can be taken off for trade union duties. The ACAS Code suggests that such agreements should specify:
- the amount of time off permitted
- the occasions on which it can be taken
- arrangements for taking time off at short notice
- the circumstances when time off will be paid
- how pay is calculated
- the officials for whom time off will be paid
- any other facilities to be provided
- the confidentiality arrangements and rules on data use
- the role of line managers
- the procedure for requesting time off
- the procedure for resolving grievances
The content of any facilities agreement does not curtail an official’s statutory rights under the 1992 Act.
Richard Arthur is an employment lawyer for Thompsons solicitors, MiP’s legal advisers.
Legal Eye does not offer legal advice on individual cases. MiP members in need of personal advice should immediately contact their MiP rep. Read more about Thompsons’ work with MiP and UNISON on Thompson’s website
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