Employee undertaking statutory duties

You have an employee who has announced that they’re going to stand for election as a local authority councillor and that she’s going to need at least half a day a month off to attend meetings.  You’re not particularly impressed with how the employee has done this as it’s been presented to you as a fait accompli. You’re really worried about how undertaking these duties will impact on the organisation.

Under section 50 of the Employment Rights Act 1996 an employee who is a local authority member may take time off during working hours for attending committee meetings and carrying out the duties of committees and subcommittees. Under s50(4) the amount of time off is that which is “reasonable in all the circumstances” having regard to:

a) how much time off is required,

b) how much time off the employee has already taken and,

c) the effect on the employers business or undertaking.

There’s nothing that prevents the employer from placing some framework around what the employee is doing.  For example, they might require the employee to give as much notice as possible in advance of any requirements to take time off and there may be occasions when it is not reasonable for the employee to take time off.  For example, the meeting might clash with something in the work diary that cannot be moved, that is perhaps organised by a third party or takes place once a year.  In that case the employer might be reasonable to say the employee cannot have that particular occasion off.  It’s important to note however that the effect on the business doesn’t outweigh everything else.  In one tribunal case the employer was expected to find a resource to back-fill the absent employee to allow them to be released for 30 days over the course of the year for their public duties, however, where the employer had rearranged the employees duties to enable him to perform his civic duties the tribunal found that the employer couldn’t expect the employee to make up that work at another time.

It is an important principle that this time off for public duties is not necessarily paid absence – it’s down to the employers discretion and a lot of employers will of course not be able to afford to pay the person to take time off. Naturally that will have a disincentive effect on somebody taking too much time off.

The courts expect an employer to meet with the employee to discuss the situation and reach some kind of an agreement establishing what is going to be a reasonable pattern for future absence. In setting down some guidelines the employer will then have some grounds if there are problems in the future to take for example disciplinary action or manage any poor performance.

If an employer fails to allow somebody to take time off then the employee will be entitled to bring a claim for such compensation that the tribunal believes is just and equitable having regard to the employers default and any relevant loss sustained by the employee.

It’s a bit like any form of flexible working – the employer naturally has concerns about how it’s going to work and it’s incumbent on the employee to prove to the employer that it can work.  An employer who tries things and then finds that it is problematic will be in a stronger position to address the issues.  Simply dismissing the employee would be problematic as the employee is likely to argue that they’ve asserted their statutory rights and been dismissed because of that to claim that it is automatically unfair dismissal.  Equally an employer who is unhelpful may drive the employee into a constructive dismissal claim.

Thus it’s better to work together to find a solution that works. If you have any queries email me at adenton@refreshinglawltd.co.uk