Requesting Time Off

The code says that the official should give as much notice as possible of the time, place, purpose and duration of the course and be prepared to supply a prospectus or syllabus.

Permission

The onus is on the member to request time off. If the employer does not permit time off, the official can complain to the employment tribunal and obtain a declaration and, possibly, compensation.

The law does not say what would happen where an official takes time off in the face of an employer's unreasonable refusal.

The employer could argue that the official was in breach of the contract of employment on the grounds that the right to time off was a statutory but not a contractual entitlement.
This could mean that an official may lose pay, be disciplined or even be dismissed for taking time off in the face of an employer's refusal.

Members have a lot to lose and little to gain in taking time off without permission. If an employer refuses time off then the member should seek advice from their union and complain to an employment tribunal.

Working hours

The right to time off during working hours means those hours during which the member is contractually required to be at work. It may be possible to persuade an employer to agree to pay for more but the employer is not obliged to do so.

Purpose

The right to time off work is restricted to the time necessary to do the official's duties, or training.

An official who works Monday to Friday does not actually need time off work to attend a weekend training course. It may be reasonable for an employer to give the official a day or two off work to compensate for attending a weekend course. However the wording of the legislation does not entitle an official to claim payment in such circumstances.

Obvious problems arise if a night worker attends a day time course. Common sense dictates that there should be some compensatory time off to catch up on sleep and the Working Time Regulations may apply.

Reasonable time off

Time off can only be claimed where it is reasonable and necessary for carrying out duties. But factors such as the effect on the employers' business for granting the time off and the effect on the official and the union if it is refused can be considered.

An employer should bear in mind:
the amount of time off taken
the purposes for which time off is taken
the occasions for which time off is taken (including the frequency)
the conditions subject to which time off is allowed
the size of the organisation and the number of workers
the production process
the need to maintain a service to the public
health and safety and security at all times.
Employers must also bear in mind the difficulties for trade union officials and members in representing and communicating with:
shift workers
part-time workers
employees at dispersed locations
employees with particular domestic commitments.

Test of reasonableness - The legislation and the code of conduct place much emphasis on both sides acting reasonably. If the employer and the official cannot agree, the employment tribunal must decide.

The reasonableness or otherwise of a refusal to allow time off, or to make payment for that time off, is essentially a matter of fact. However, the tribunal must consider whether the employer's assessment came within a band of reasonableness.

Pay for time off

An official who has been allowed time off work for trade union duties during work hours is entitled to be paid in full for the time off. Where the official works on any sort of payment by results then the payment is based on average earnings.

Remedies

A complaint to an employment tribunal that the employer has failed to permit time off must normally be made within three months of the request being refused.

The claim

Where the employer allowed time off but did not pay for it the tribunal can simply order payment of the sum due.

The tribunal can award compensation for injury to health or feelings and other non-financial loss, as well as the actual financial loss.

Complaints that the employer failed to allow reasonable time off are not restricted to refusals. Failure can included permitting too little time off.

If an employer refuses a reasonable request for time off, the employee would be unwise to take the time off anyway, although doing so would not necessarily prejudice a tribunal claim. Ensure the tribunal claim is made as soon as the time off is refused.