Time spent carrying out Union activities was not working time
When you are considering working time limits and the need for breaks, do you have to take into account the employee’s time spent at meetings carrying…
When you are considering working time limits and the need for breaks, do you have to take into account the employee’s time spent at meetings carrying out trade union duties?
A Judgment by Liverpool Employment Tribunal has confirmed that you do not (Edwards v Encirc Limited). In this case, the time spent by these trade union representatives attending union meetings was not ‘working time’ within the meaning of the Working Time Regulations 1998 and this meant that their employer was not obliged to take this time into account when considering the mandatory rest periods to which the employees were entitled.
Under the Working Time Regulations a worker is entitled to a daily rest of eleven uninterrupted hours in every 24-hour period. Mr Edwards and Mr Morgan were employed by Encirc Ltd and, in addition to their operational roles, they both held Union posts. Mr Edwards was a health and safety representative and Mr Morgan a shop steward. They were both due to work twelve hour nightshifts. When Mr Edwards attended a meeting of health and safety representatives which started at 1pm and finished at 4pm, he did not have an eleven hour rest break between the end of the meeting and the start of his next shift (even when the employer had allowed him to start the shift later than usual). Similarly, when Mr Morgan attended a Union meeting in his capacity as a shop steward at 9am which finished at 1pm, even though the employer allowed him to start his shift at 10pm that night (later than usual), this allowed him only a nine hour gap between the end of the meeting and the start of his shift.
Both employees brought an Employment Tribunal claim stating that the meetings should be counted as working time and consequently they argued that they should be allowed to rest for at least eleven hours before carrying out further work. However the Employment Tribunal has held that time spent at the Union meetings did not count as working time and has rejected both claims.
The Working Time Regulations define working time as “any period during which [the worker] is working, at his employer’s disposal and carrying out his activity or duties”. The Tribunal has confirmed that all three parts of this test must be satisfied for it to be met. In this case, although Messrs Morgan and Edwards were ‘working’ while attending the meetings, they were not carrying out their normal operational duties and were not at their employer’s disposal. Their attendance was ‘to represent the interests of their members’ and they were ‘beyond the control and direction of their employers’ during this time.
Working time under the Regulations can also be: any period during which the worker is receiving relevant training; and any additional period which is agreed in a relevant agreement to be treated as working time. The Tribunal in this case also looked at the employer’s recognition agreement with the Union to see if the last part of this test was satisfied. However, as the agreement was silent on the performance of union duties outside normal working hours and rest periods, this did not assist these claimants.
What does this mean for me?
Many of you may have employees who are given time off to undertake trade union duties, which may (as in this case) include time with pay. However what this Judgment reinforces is that when organising shift patterns you do not need to count time spent carrying out union activities as working time. Whilst it is important to make sure that those employees who have additional Union responsibilities are able wherever possible to carry these out (and it is likely that the employer’s flexibility in this case would have helped at the hearing), a break of less than eleven hours between a Union meeting and the start of an employee’s shift will not routinely breach the Working Time Regulations.
Whilst this is good news for employers and particularly those of you who wish to ensure the effective operation of shift patterns, care must be taken in applying this on each occasion. Do remember to check your own documents, policies and procedures, as a differently worded Union agreement may result in a different outcome. When negotiating in the future about collective agreements, bear in mind that Unions may want to include provisions which counteract this Judgment. The nature of the duties may also make a difference, there might be examples of duties which are more arguable than attending a shop stewards’ meeting to discuss a pay offer.
Legally this case is not ground-breaking and as it is not an appeal decision it will have limited weight. However, it may be a helpful reference point when scheduling work around Union activities and a case which you can point to if challenged. We appreciate that this can be a highly sensitive issue in many workplaces that can pose real practical problems for employers.