Law Report: Worker entitled to time off for union duties: London Ambulance Service v Charlton and others - Employment Appeal Tribunal (Mr Justice Wood, Miss JW Collerson and Mr JD Daly), 1 September 1992.

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An employee who is a trade union official and applies to his employer for time off with pay to carry out trade union duties is not necessarily entitled to time off to attend a meeting simply because it is in connection with collective bargaining; the employer, when considering whether the employee's request is reasonable, can take account of other factors such as the overall history, timing and agenda of the meeting.

The Employment Appeal Tribunal dismissed an appeal by the London Ambulance Service from an industrial tribunal's decision upholding the applicants' complaint relating to the LAS's refusal to grant time off with pay for trade union duties.

The negotiating structure for the LAS involves the Whitley Council at national level and a joint consultative committee beneath that. Various officials of trade unions are involved in the joint consultative committee.

The National Union of Public Employees, which has the largest membership, established a district consultative committee which examines proposals from and submits proposals to the various forums within the LAS about matters affecting the terms and conditions of membership as a result of national Whitley discussions or agreements.

Ten members of the committee applied, pursuant to section 27(1)(a) of the Employment Protection (Consolidation) Act 1978, as amended by the Employment Act 1989, for time off with pay for their duties. The LAS refused. The applicants, four NUPE members, complained to an industrial tribunal which upheld their complaints.

Peter Clark (Capsticks) for the LAS; Jeremy McMullen (O H Parsons & Partners) for the applicants.

MR JUSTICE WOOD, giving the judgment of the EAT, said that the old section 27(1)(a) provided that an employer should permit an employee who was an official of a trade union to take time out during his working hours to carry out 'those duties of his as such an official which are concerned with industrial relations between his employer and any associated employer and their employees'.

That wording had been considered in Sood v GEC Elliott Process Automation Ltd (1980) ICR 1, which was approved in Beal v Beecham (1982) ICR 460, 473, where Lord Justice O'Connor said that it was not correct to limit industrial relations in section 27 of the 1978 to mean collective bargaining as defined in section 32. The meetings and attendance at committees and the purposes of the committees must be sufficiently proximate to the duty defined under section 27(1).

The amended section provided that an employee should be permitted to take time off to carry out 'any duties of his as such an official, which are concerned with negotiations with the employer that are related to, or connected with, any matters which fall within section 29(1) of the Trade Union and Labour Relations Act 1974 ..'

The wording was quite different and collective bargaining and section 29(1) of the 1974 Act was substituted for the old former phrase of 'industrial relations'. There was a relaxation in the number of duties which might be 'related to or connected with' collective bargaining, but there must that nexus with collective bargaining as defined in section 29(1) of the 1974 Act.

Reading the words literally it seemed that if you were actively preparing for negotiations in connection with collective bargaining then you were carrying out a duty of an official of a trade union which concerned those negotiations. Provided that there was sufficient nexus between the collective bargaining and the duty involving preparation for that particular issue, it seemed that the occasion fell within section 27(1)(a).

The Code of Practice produced by the Advisory, Conciliation and Arbitration Service provided that reasonable time might be sought to prepare for negotiations, inform members of progress, explain outcomes to members, and prepare for meetings with the employer about matters to which the trade union had any representational right.

Section 27(1)(a) was wide in its scope and was by its wording open to misuse. It was the provisions of the other parts of section 27 which maintained the balance. Merely because an occasion fell within section 27(1)(a) it did not necessarily follow that time off should be granted.

So far as good industrial relations were concerned, frankness between the employer and trade union was to be encouraged; an employer was entitled to seek sufficiently clear details of the issues involved in order to be able to take an informed decision in answer to a request; although in some circumstances, the trade union would want to play its cards close to the chest, it would nevertheless help if it was frank in its answers.

On an application to an industrial tribunal there were two issues: First, did it fall within section 27(1)(a)? Secondly, the issue under section 27(2) of reasonableness. Even if strictly within the definition of section 27(1)(a) there might well be issues such as, had there been recent meetings of the collective bargaining committee, so that to ask for a further meeting without any agenda might be unreasonable? What was the overall history? The actual timing? There were many factors which should be taken into account and merely because the duty fell within the definition of section 27(1)(a) it would not necessarily be reasonable to grant a request in certain circumstances.

The industrial tribunal's decision was not flawed in law. There was evidence on which it could find that the activities of the district consultative committee were related to or connected with collective bargaining as defined. The appeal must be dismissed.

Ying Hui Tan, Barrister