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Employment Law

Legal guidance - compliance - software

18 MAY 2015

Time spent undertaking trade union activities counts as 'working time'

Jessica Ryan
Solicitor, Veale Wasbrough Vizards

The Employment Appeal Tribunal (EAT) has confirmed in a recent case, that time spent undertaking trade union or health and safety meetings is working time for the purposes of the Working Time Regulations 1998 (WTR).

In Edwards v Encirc Ltd, Mr Edwards and Mr Morgan (the Claimants) were trade union and health and safety representatives. They had to attend meetings which ended between six to nine hours before their night shifts commenced. WTR provides that workers are entitled to a daily rest period of 11 uninterrupted hours for each 24 hour period. The Claimants argued that the time spent in their trade union and health and safety meetings constituted working time and that there had therefore been a breach of the WTR by their employer.

The Employment Tribunal (ET) has rejected the Claimants' arguments, in a decision we reported previously. The Claimants appealed to the EAT.

The EAT held that the ET had applied too narrow an interpretation to the definition of working time. Specifically, the ET had held that the Claimants were outside their employer's control and direction whilst at their meetings. The EAT disagreed, on the basis that the requirements in the WTR do not extend to being consistently under the employer's physical direction and control. It is enough that the employer has already required the employee to be at a specific place and to hold themselves out as working for the employer's benefit. The case has been remitted to the ET for a fresh decision on the facts of the case.

Best practice

Union duties are now confirmed to be working time for the purposes of WTR. As such, employers should ensure that the required 11 hour break between meetings and the start of shifts is provided. Where a meeting impacts upon an employee's rest time, thought should be given as to how else to accommodate the individual, such as through agreeing a later start time or different shift pattern.
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