What penalty can an employer expect if it unlawfully refuses a union rep time off to for carrying out union duties? In a recent case, the answer was £2,000 for a one-off breach of the law.

Background

The case of Carberry v Bedfordshire Fire and Rescue Service is only a first instance decision and does not change the law or represent binding authority, but all employers with recognised trade unions can learn from it as paid facility time is a common bone of contention between union reps and their employers.  

Mr Carberry was a union rep and firefighter. He asked his employer to be released from work duties to accompany one of his firefighter members whose case was being heard in an employment tribunal.  The employer refused.  It took the view that as Mr Carberry was neither presenting the case himself nor required to give evidence to the employment tribunal that day, he would not be carrying out union duties so could not have paid time off to attend.  Once rejected, Mr Carberry instead applied for annual leave that day, this request was approved.

The law (s.168 TULRCA) compels an employer to allow employees who are 'officials' of any recognised trade union to take time off for certain specific reasons which include negotiations and 'the performance on behalf of employees ...of functions related to or connected with matters falling within that provision which the employer has agreed may be so performed by the trade union'.  Time off for these purposes must be paid time off, but there is no hard and fast rule on how much paid time must be given and the employer has a very wide discretion.

Decision

In this case, the Tribunal said it was understandable Mr Carberry should wish to attend the employment tribunal as the particular case related to how the collective agreement was interpreted, something of interest to the wider staff group.  His attendance therefore came within the definition of 'trade union duties' and he should have been given paid leave to attend the hearing on that basis. 

Applications for breach of the requirement to allow employees paid time off for carrying out union duties under s168 TULRCA are not litigated very often.  It is, however, an issue that often comes up for our clients in terms of how they manage ongoing union relationships.

Learning Points

This case is a good reminder for employers of the following:

• When determining whether the time off is for trade union duties and the amount of time off to be taken, the applicable test is the band of reasonable responses test which, arguably, is generally a generous test for employers.  An employer can be firm, but still be within the band and the law.
• The Tribunal may award a successful claimant compensation that it considers just and equitable in all the circumstances and which may be beyond any actual losses.  Here, the Claimant had lost a day's holiday valued at £123.  The Tribunal decided to award a further £2,000 on a 'just and equitable' basis, for this one-off breach by the employer.
• In this case, the Claimant was refused his request for paid time off to carry out union duties but decided to use his annual leave instead.  As his employer approved his request for annual leave, the Tribunal concluded that his attendance at work that day could not really have been vital.  The lesson for employers is that if they are going to refuse a request for paid time off for union duties, they need a paper trail of why, operationally, that person cannot be spared from the workplace on that day and the same rationale should be used to refuse paid annual leave.
• Generally, it is important for employers to keep records of paid time off given to each union representative – this is often neglected in practice.
• By way of guidance, the Acas Code of Practice on time off for trade union duties and activities provides examples of union duties for which paid time off is usually given and 'union activities', a lesser category, which should only attract unpaid leave (and again, the amount of unpaid time off is at the employer's discretion).