Employment Review: June 2015 – Union representatives and working time

Mr Edwards and Mr Morgan were employed by Encirc on 12 hour shifts. In addition to their roles, Mr Edwards was an employee health and safety representative and Mr Morgan was a trade union representative.

Both attended, respectively, health and safety meetings and trade union meetings. These finished in the late afternoon leaving Mr Edwards only 6 hours break between his meeting and the start of his night shift and allowing Mr Morgan just 9 hours between the end of his meeting and the start of his shift.

The employees argued they should, for the purposes of regulation 10(1) of the WTR 1998, be given 11 hours rest between the carrying out of their functions at the meetings and starting their shift. However the employer disputed the meetings were ‘working time’ for the purpose of the WTR 1998 and therefore argued that there was no breach.

The Employment Tribunal (ET), adopted a narrow interpretation of the WTR 1998 and dismissed the employees’ claims, finding that time spent on trade union duties or attending health and safety meetings was not ‘working time’. In this respect, although the employees could be said to be ‘working’, the ET determined that they did not satisfy the remaining elements of regulation 2(1)(a) of the WTR 1998; the employees were not at their employer’s disposal nor were they carrying out their activities or duties.

The EAT upheld the employee’s appeal on the basis that time spent at the meetings was ‘working time’. It said that being at the employer’s disposal does not mean being at the direction and control of the employer throughout the period. The employees were required to attend the meetings and the employer had determined when and where the meetings were to be held. It was enough that the employer had required the employees to be in a specific place and hold themselves out as ready to work to the employer’s benefit.

Further in the EAT’s view, there was no requirement that the activities or duties required were those for which the employees were employed under their contracts of employment or even their normal working duties. If they were engaged in activities that were, in the broader sense, of benefit to the employer’s business, arising from the employment relationship, and done with the employer’s knowledge at and in an approved time and manner, that could be sufficient.

Comment

Whether or not employees attending union meetings and/or carrying out other employee representative duties outside the facts of this case will count as ‘working time’ will depend on the individual circumstances. However employers should be aware that tribunals will be guided by the principles set out in this case as it is the first EAT decision to address this specific issue.

As a result when organising employee shift patterns, employers should note that time spent carrying out union activities is likely to count as ‘working time’ and therefore a break of less than 11 hours between a union meeting and the start of an employee’s shift may well constitute a breach of the WTR 1998.

---

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.