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Education HR e-briefing: Government publishes guidance on facility time regulations

  • United Kingdom
  • Education - Briefings

14-06-2018

Introduction

In March 2017, the Government published the Trade Union (Facility Time Publication Requirements) Regulations 2017 (“the Regulations”). These require relevant public sector employers (including higher and further education corporations and academies) to publish information relating to the amount and cost of facility time granted to relevant union officials. Under the Regulations, which came into force on 1 April 2017, specified information must be published on an annual basis covering the 12 month period beginning with 1 April. The first relevant period runs from 1 April 2017 to 31 March 2018 and the first information under the Regulations must be published before 31 July 2018.

The legislation applies to institutions in England and Scotland but not those in Wales or Northern Ireland.

Whilst there is a threshold for the Regulations to apply, this is set fairly low as an institution falls within the ambit of the legislation provided it has a full-time equivalent number of more than 49 employees throughout the entirety of any seven of the 12 months within the relevant period. Consequently the provisions will apply to virtually all education institutions in England and Scotland.

When the Regulations were published the Government stated that it would be issuing Guidance on the new requirements and this has now been released. Below we summarise the key points that arise from this Guidance but first it may be helpful to recap on the policy underlying the Regulations and the key publication requirements.

The Policy behind the Regulations

The aim of the Regulations is to provide greater scrutiny of the level of paid facility time granted by individual employers in the “public sector” and its cost. Ultimately, the publication of data regarding the amount and cost of facility time could lead to Government intervention to control or restrict paid time off for union activities and duties (presumably using the argument that this is not an appropriate use of public money).

Section 14 of the Trade Union Act 2016 will, once brought into force, provide that, after the end of the period of 3 years’ beginning with the date on which the Regulations were brought into force, the Government can consider using “reserve powers” under the Act to make regulations which impose “any provisions [considered] appropriate” to ensure that the percentage of an employer’s total pay bill spent on paying relevant union officials for facility time does not exceed a specified level.

Such measures could be targeted at specific employers if the information they publish under the Regulations shows a level of paid facilities time which is considered by the Government to be unreasonable or disproportionate. As will be seen later, one publishing requirement relates to the amount of paid time off for trade union activities (for which there is no statutory right to payment) – suggesting a concern on the part of Government that time off with pay is being granted unnecessarily for such activities. It can therefore be anticipated that this will be an area of particular scrutiny for the Government and a potential area for intervention under reserve powers.

The Government can only use reserve powers after first giving the employer notice of its concerns about the level or cost of facility time and a reasonable opportunity to respond and to take corrective action. Specifically, the reserve powers cannot be used against that employer until at least 12 months have passed since the first notice of concern.

A reminder of what institutions are required to publish

Under the Regulations, institutions are required to publish a range of information in relation to “relevant union officials” and “facility time”.

A “relevant union official” is a trade union official; a learning representative of a trade union within the meaning of the 1992 Act; or a safety representative appointed under regulations made under the Health and Safety at Work Act 1974.

“Facility time”, for these purposes, means time off taken by a relevant union official, with permission from the institution, in order to carry out trade union duties, the duties of a union learning representative or trade union activities in relation to which an employee is acting as a representative of the union; or to accompany a worker to a disciplinary or grievance hearing; or to carry out duties and receive training under the Safety Representatives and Safety Committees Regulations 1977.

There are 4 parts to the information that must be published, in a statutory questionnaire, as follows:

1. Relevant union officials. This is the total number of employees who were relevant union officials during the relevant 12 month period, together with the full-time equivalent employee number.

2. Percentage of time spend on facility time. This requires information to be given as to the number of employees who were relevant union officials employed during the relevant period who spent 0%; 1-50%; 51-99% or 100% of their working hours on facility time. This information is to be provided by way of a table with the relevant numbers of employees entered alongside each of the four different percentage ranges.

3. Percentage of pay bill spent on facility time. The institution is required to give three figures here - the total cost of facility time; the total pay bill and the percentage of the total pay bill spent on facility time.

The total cost of facility time is calculated by determining the hourly cost of each employee who is a relevant union official during the relevant 12 month period; multiplying the hourly cost for each such employee by the number of paid facility time hours spent by that employee on facility time during the relevant 12 month period and, where there is more than one employee who is a relevant union official, adding together the amounts for each employee.

The hourly cost is calculated by adding the amount spent on gross wages, pension contributions and national insurance contributions in respect of each union official during the relevant 12 month period and dividing that figure by the number of working hours during the period.

The total pay bill is calculated by adding the total gross amount spent on wages by the institution in respect of all of its employees during the relevant 12 month period to the amount spent by it on pension contributions and national insurance contributions.

The percentage of the total pay bill spent on facility time is calculated by dividing the total cost of facility time by the total pay bill and multiplying by 100.

4. Paid trade union activities. Here the institution is required to publish, as a percentage of total paid facility time hours, how many hours were spent by relevant union officials employed by it on paid trade union activities during the relevant 12 month period.

“Total paid facility time hours” means the total of all hours spent on facility time by all employees who are relevant union officials, excluding hours when such employees are taking part in any activities when acting as a representative of the union for which they are not paid by the institution.

“Paid trade union activities” means the time taken off by relevant union officials during their working hours “for the purpose of taking part in any activities in relation to which they are acting as a representative of the union” and for which they receive wages from the institution. It is crucial to understand what does and does not fall within this definition, in order to report accurately under this part of the Regulations. The crucial elements are that:

• the time off is paid;

• is for taking part in union activities (as opposed to carrying out union duties); and

• is for activities in which the employee is acting as a representative of the union.

Time off for trade union activities and duties – the distinction

Trade union law distinguishes between trade union “duties” and “activities”. There is a statutory right to reasonable paid time off for trade union duties. There is a statutory right to reasonable time off for trade union activities – but no statutory right to time off with pay.

The focus of the fourth publishing requirement under the Regulations is on the amount of paid time off for certain trade union activities – i.e. where the employer is allowing time off for pay when there is no statutory obligation to do so. Paid time off for union duties does not fall within the scope of this requirement (although it will be captured in the other information published on facility time) and therefore it is important not to confuse “duties” with “activities”.

The reporting obligation in relation to union activities relates to paid time off to take part in any activities in relation to which the employee is acting “as a representative of the union”. It is important to recognise that this does not refer to time representing individuals in disciplinary and grievance hearings (which involve representing an individual - not the union - and which will fall under trade union duties rather than union activities).

Time off for union activities representing the union will include activities such as:

• branch, area or regional union meetings to discuss union business;

• attending union executive committee meetings or annual conferences;

• meetings with full time officers to discuss issues relevant to the workplace.

Normal practice in the sector is that time off for such activities will be unpaid, and on that basis the expectation would be that it would be exceptional for an institution to have any such paid time off to report. (If the union representative reschedules work activities to be carried out at another time, in order to undertake trade union activities of this nature, this would also be classed as unpaid time off)

Employees who are members of trade unions can also take time off for union activities – this does not fall within the definition of “facility time” under the Regulations and so do not have to be included (even if paid time off is given for them). Examples would include:

• attending workplace meetings to discuss and vote on the outcome of negotiations with the employer;

• voting in union elections

• accessing the services of union learning representatives

Time off for union duties (rather than activities) would include:

• negotiations/collective bargaining with the employer - preparing for and conducting negotiations and informing members of the outcome

• representing and accompanying trade union members at disciplinary and grievance hearings and other casework

• preparing for and undertaking consultation on redundancies and TUPE transfers

The ACAS Code on time off for trade union activities and duties is a helpful reference point when categorising facilities time as union “duties” or “activities”.

Guidance

The Guidance (which has been written with input from a range of employers, trade unions and the TUC) runs to 20 pages and includes some frequently asked questions as well as 3 annexes containing, respectively, the table of information required under the Regulations; a glossary of terms; and Guidance for local authorities, school academies and other organisations in cost sharing arrangements.

The Guidance reminds institutions that facility time is the provision of paid or unpaid time off from an employee’s normal role to undertake trade union duties and activities as a trade union representative and that whilst there is a statutory entitlement to reasonable paid time off for undertaking union duties, there is no such entitlement to paid time off for undertaking activities.

Amongst the key points to emerge from the Guidance are:

• It is recommended that institutions have an agreement which sets out the amount of time off that can be provided, whilst recognising fluctuations in use may occur depending on demands on time.

• That both employers and trade union representatives have an important role to play in effectively and efficiently managing the use of facility time.

• In order to comply with the requirement to publish data on the number of relevant trade union officials during the year (relevant for information 1 above) the institution will need notification when one of its employees becomes or ceases to be a trade union representative. If an employee becomes a relevant trade union official during the year they should be included within the number published irrespective of when during the relevant period they undertook this role and the same applies to any employee who steps down during the relevant period. Therefore if representatives change during a relevant period this may mean that the number of employees who were trade union officials during the relevant period will be greater than the number of officials in the role at any one time.

• When using the employee hourly cost to calculate the percentage of the pay bill spent on facility time (relevant for information 3 above) it should not be possible to identify individual employees. If this is possible a notional hourly cost should be used instead of the actual hourly cost.

• Institutions should put in place structures to collect data at frequent intervals and collate this centrally, as this will allow time for data to be checked to ensure that the data published is robust and complete.

• Institutions will need to collect information from their trade union representatives throughout the relevant period and should ensure that this data is collected, stored and used in accordance with data protection legislation.

• In calculating the working hours spent on facility time for trade union duties and paid time for trade union activities (relevant for information 3 and 4 above), all the duties and paid activities should be counted. So if a trade union representative has more than one trade union role the total hours across those roles should be recorded.

• To facilitate the correct recording of facility time, line managers and trade union representatives will need to record individual facility time usage and submit this information to allow the institution to meet its annual publication requirements.

• The requirement under the Regulations is only to record and report on the information specifically set out and therefore there is no need to include the number of representatives by type or categories of trade union duties.

Finally, under the Regulations, an institution must publish the required information (before 31 July each year) on its website, in its annual report and accounts and on a website maintained by or on behalf of the Government. The Guidance confirms that the Cabinet Office is developing a central reporting service to enable organisations to publish their data on a website maintained by or on behalf of the Government. This service will go live on 1 July 2018 and be accessible from within gov.uk.

Comment

As mentioned, the first set of information must be published in less than 2 months’ time. Although the Guidance may provide institutions with some clarification on the task ahead, it does not in reality add a great deal to the information contained in the Regulations themselves. Any institutions which have been holding back from collating the information, pending publication of the Guidance, should now commence that process.

Most institutions have written agreements in relation to facility time, which may set out an allocation of paid time off for carrying out union duties for each recognised trade union and/or a requirement to seek permission for time off for union duties and activities. These facilities agreements will typically make clear that time off for union activities to represent the union is unpaid. In the rare event that the agreement allows for paid time off for carrying out activities as a representative of the union, or is ambiguous on the point, institutions will need to consider whether it is appropriate to continue to allow this and, if they do, to ensure that arrangements are in place to specifically record the amount of paid time off granted so that this can be reported.

A written facilities agreement will be a useful starting point for reporting the amount and cost of facility time, but may not reflect what is actually happening in practice. Institutions will need to consider whether their existing arrangements for monitoring the use of facility time and for recording requests made to, and granted by, line managers for paid time off, are adequate to enable accurate reporting under the Regulations. Institutions without written agreements with their unions regarding the allocation and use of facility time should consider adopting these – it is good practice in any event to have them.

When the first set of data is published it will enable comparisons between institutions, particularly on the percentage of the pay bill spent on facility time and that on paid trade union activities - anyone interested will be able to put together a “league table” based on the information provided. Institutions who sit at either end of that table may wish to review their facility time arrangements to bring them closer to sector norms.

For more information on the Guidance or the publication required by the Regulations please contact:

For more information contact

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