Union Representatives and Working Time

Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

Is attending meetings at the workplace, in the capacity of a trade union or health and safety representative, working time for the purposes of the Working Time Regulations?

Yes, held the EAT in Edwards v Encirc Ltd.

Mr Edwards and Mr Morgan were employed by Encirc on 12 hour shifts. Mr Edwards was also a health and safety representative and Mr Morgan was a trade union representative.

They attended, respectively, health and safety meetings and trade union meetings. These finished in the late afternoon leaving Mr Edwards only 6 hours break between his meeting and the start of his night shift and allowing Mr Morgan just 9 hours between the end of his meeting and the start of his night shift. The employees argued they should, for the purposes of regulation 10(1) of the Working Time Regulations 1998, be given 11 hours rest between the carrying out of their functions at the meetings and attending on shift. The employer disputed the meetings were 'working time'.

The EAT confirmed that regulation 2(1)(a) of the WTR requires that each of the three elements in the definition of working time must be satisfied. Thus, the worker must be (i) working (ii) at the employer's disposal and (iii) carrying out his activities or duties.

The employment tribunal found the Claimants were 'working' when at meetings. But it had adopted too narrow an approach to conditions (ii) and (iii). The Claimants were not, said the EAT, required to be under the employer's specific control and direction in terms of the carrying out of their duties or activities. A wider approach was allowed, which could include where an employer has required an employee to be in a specific place and to hold himself out as ready to work for the employer's benefit, which might include attending a trade union or health and safety meetings, allowing for a broad understanding of 'benefit'.

Also, there was no requirement that the activities or duties required were those for which the Claimants were employed under their employment contracts. If they were engaged in activities that were (in the broader sense) for the benefit of the employer, arose from the employment relationship, and done with the employer's knowledge at and in an approved time and manner, that could be sufficient. Their claims were therefore remitted to the employment tribunal for re-consideration, applying this broader approach to 'working time'.