Under Regulation 2(1) of the Working Time Regulations 1998, working time is defined as ‘any period during which the worker is (a) working (b) carrying out his duties and (c) at the employer’s disposal’. All three of these criterion must be met. Any period during which the worker is receiving ‘relevant training’ also counts, as will any additional period which is agreed in a relevant agreement such as the contract of employment or a collective agreement with the union to be working time although it is not possible for an agreement to deem time which would otherwise be treated as working time as not being such.
If you look at the statutes governing things like union learning representatives, health & safety representatives, information & consultation representation, collective consultation for redundancy or TUPE, union members having unpaid time off for union activities, none of them say anything about whether the time should be treated as working time under the Working Time Regulations 1998.
Looking at the definition of working time, the difficulty has always come in assessing whether the ‘duties or activities’ in the definition should include those of a workplace representative and whether they can truly be said to be ‘at the employer’s disposal’ whilst they are doing those things.
These questions were considered recently by the Employment Appeal Tribunal (EAT) in the case of Edwards & Other -v- Encirc Ltd 2015. In that case it was decided that time spent by a health and safety representative attending health and safety meetings and time spent by a representative of a recognised trade union attending union meetings could be working time. The question was important because the employees were on night-shifts but meetings were held during the day. Although they were being allowed to start their subsequent night shift slightly late to take account of the fact that they had spent time during the day at meetings, they argued they should be allowed to take their full 11 hour rest period after the meeting before starting work again. The EAT agreed.
It held that the employees were carrying out their ‘duties or activities’ at the meetings because the activities were, in a broad sense, for the employer’s benefit and were being undertaken as a direct result of the employment relationship. The employees were also ‘at the employer’s disposal’ because the meetings were being held at a time and place dictated by the employer and attendance was required. The parties were in agreement that if the employer had chosen to, it could have directed the employees to leave the meeting and undertake other duties.
Interestingly, the EAT took the view that where a meeting is between shifts, the employer could direct the employees to leave the meeting so as to enable them to take a sufficient break in order to start their shift on time. I’m not sure quite how that would work in practice.
It is important to stress that this case doesn’t mean that any employee representatives attending any union meeting or health and safety meeting in any circumstances will be treated as working time but it does tell us that as a broad application of the principles which may well make such activities and duties fall within working time. This is obviously important from the perspective of calculating not only that employees are having sufficient rest, but it may also affect things like the calculation of the National Minimum Wage.