Trade union activities and working time

Working time rules

Under the Working Time Regulations 1998 (WTR) your employees must have a minimum daily rest period of at least eleven uninterrupted hours in each 24-hour period (provided they’ve not exercised their statutory right to opt out of the WTR ). A “rest period” is any which is not “working time”.

Working time is defined as any period:

• during which the worker is working, i.e. carrying out their duties or at the employer’s disposal
• during which the worker is receiving relevant training
• which has been agreed in a relevant agreement, e.g. a contract of employment or a collective agreement, to be working time.

In relation to union activities

But what’s the situation where an employee is a member of a trade union or a trade union rep? Do activities they carry out on the union’s behalf - which are most probably connected to their employment - count towards working time or not? This was the issue before the tribunal in the case of Edward and another v Encirc 2013 .

Let’s talk shop

Mr Edwards (E) and Mr Morgan (M) were both employed by Encirc Ltd and each held trade union posts. As part of their trade union duties, both men attended union meetings outside their normal working hours. Consequently, when calculating their employees’ daily rest breaks, Encirc did not count E and M’s attendance at trade union meetings as working time.

That’s (not) unfair

E and M claimed that their attendance at trade union meetings formed part of their job duties so these activities should be classed as working time. Having lost an internal grievance they took Encirc to the tribunal alleging it had breached the WTR . Unfortunately for them, the tribunal did not agree.

Outside of employer’s control

Although it fully accepted that E and M had both been “working” in the ordinary sense of the word when attending trade union meetings, they were equally beyond Encirc’s control and direction during this period of time. Neither were they undertaking duties falling within the scope of their job roles for Encirc whenever they undertook these union activities. Therefore, in this case, the working time test was not satisfied.

Note. Whilst this case isn’t binding on other tribunals it may, nevertheless, lead trade unions to demand that any work undertaken on union activities is considered to be working time for the purposes of the WTR .

Tip. Unless, you have a collective, or other relevant, agreement in place that already makes this provision, we recommend that you resist such demands. According to the tribunal, you would be well within your rights to do so. That said, whilst it wasn’t an issue in this case, when a trade union rep is asked to act as an employee’s companion, e.g. during a disciplinary hearing, it’s likely that will be working time. Although they are undertaking a union role, it is being carried out to benefit an employee.