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Trade Union activities is not working time

There have been a string of cases over recent months defining what situations will be classed as "working time", with sleep-over care workers (Whittlestone v BJP Home Support Limited 2014) and on-call paramedics (Truslove and another v Scottish Ambulance Service 2014) held to be on working time despite only being at the disposal of their employer and not actually carrying out any work.

The next in this line of cases has now been decided by the Employment Tribunal ("EAT").

Facts

In Edwards and another v Encirc Ltd, Mr Edwards, an employee health and safety representative, and Mr Morgan, a shop steward, were required to attend meetings from 1pm to 4pm and from 9am and 1pm respectively. Both employees were then required to work a night shift. The start of their night shift, which was usually 7pm, was delayed until 10pm in consideration of their attendance at meetings earlier in the day.

Under the Working Time Regulations 1998 ("WTR") a worker is entitled to daily rest of 11 uninterrupted hours in every 24-hour period (regulation 10). Although the start of their night shift had been delayed Mr Edwards and Mr Morgan were only give an uninterrupted rest period of 6 and 9 hours respectively.

Both employees submitted grievances and issued claims to the Employment Tribunal ("ET") under regulation 30 of the WTR.

Decision

The ET dismissed both claims, finding that the time spent on trade union duties and activities was not "working time" and therefore did not break the period of uninterrupted rest since the employees' last night shift.

The ET held that time spent on trade union duties and activities was not "working time" as, although they were working, they were not at the employer's disposal as they were beyond Encirc's control and direction whilst exercising their trade union duties. Nor were the employees carrying out their activities or duties whilst attending these meetings. This meant that the employees did not satisfy all of the three requirements under regulation 2(1) of the WTR.

Further, the ET refused to allow recognition of the trade union by the company via a recognition agreement to constitute a relevant agreement under which additional periods are to be treated as working time. The recognition agreement was silent on the performance of union duties outside of normal working hours or the issue of rest periods.

As the meetings were not considered part of "working time" there could be no breach of regulation 10 to allow 11 hours uninterrupted rest. This also meant Encirc could not be found to have subjected the claimants to a detriment due to their trade union activities by not allowing them a 11 hour rest period; the employees were given corresponding time off in lieu before they started their next shift and this was considered sufficient to prevent any detriment.

Thoughts for employers

Although this case does not impose any new obligations on employers and, in some respect, may come as a relief as employers are free to arrange work without needing to provide an 11 hour break following union meeting, it highlights to employers the need to establish clear rules on how time spent whilst carrying out trade union activities will be dealt with. If the recognition agreement had dealt with this time clearly it would have saved Encirc the cost and time incurred in defending the claim.

This case may lead to trade unions seeking to have expressly stated in their recognition agreements that time spent as a trade union representative is working time if you agree make sure to comply with all the rules of the WTR; paying national minimum wage for all working time, allowing 11 hour uninterrupted rest between shifts and weekly rest of 24 uninterrupted hours in every seven day period.

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