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Working Time and Union Activities
13 May 2015

Working Time and in particular the interaction of working time, rest breaks and compensatory rest breaks is notoriously complex and potentially a trap for unwary employers. This was seen last week following the EAT’s decision considering whether an employee who worked shifts had had sufficient rest between them when he attended a meeting as either a trade union or health and safety representative. Employees are required to have a minimum period of 11 hours rest. The issue was whether when employees attended meetings they were “at work” and therefore working.    

The facts

Mr Edwards and Mr Morgan were employed by Encirc on 12 hour shifts. They were also health and safety and trade union representatives and regularly attended meetings outside of their normal shift hours. Encirc did not consider the meetings "working time" and therefore the employees were not provided the rest periods between shifts and meetings as set-out in the Working Time Regulations.

The law

In order for time to be counted as “working time” the worker must be (i) working (ii) at the employer’s disposal and (iii) carrying out his activities or duties. 

Employment Appeal Tribunal judgment

In the Employment Tribunal, Edwards and Morgan were found to be “working” when attending the meetings but failed to demonstrate that they were either at the employer’s disposal or carrying out it's duties. The EAT found in favour of the employees which said that the tribunal had used too narrow an interpretation because:

(i)  The employer derived a benefit from having employees attend health and safety and / or union meetings, and

(ii) An employee’s duties were not limited to those in their employment contract. As the employer derived a benefit from employees attending such meetings they fell within the employees’ duties for the purposes of the Working Time Regulations.

Summary

Where employees undertake work related activities outside of their normal working hours, for example health and safety and union activities, employers should ensure that there is sufficient daily rest between the end of the meeting and the start of the next working day or shift. 

For more information about the issues in this article or to find out more about how the Employment team can help you please contact the team on 0118 952 7284 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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