Time off for public duties: case study

Hilary Burgess of Lewis Silkin concludes a series of articles on the right to time off for public duties with a case study that looks at a situation in which an employee asks for time off work to attend council meetings and another employee asks for time off work to attend a charity's board meeting. 

Harry Honourable works as a technical support assistant in the IT department of Fair-Minded LLP, a large accountancy partnership. The IT department provides early and late cover for the firm's staff and Harry works from 12pm to 8pm, Monday to Friday. Harry has recently been elected as a local authority councillor. He asks his manager, Jenny, if he can take time off work every two months to attend council meetings. Jenny is not sure if the firm has to give Harry the time off that he has requested.

Should Fair-Minded grant Harry time off to attend council meetings?

When deciding whether or not to grant Harry the time off work that he has requested, Fair-Minded needs to consider if his request qualifies under the statutory provisions relating to time off for public duties. Under s.50(2) of the Employment Rights Act 1996, an employee who is a member of one of the bodies listed in the Act is entitled to reasonable time off to carry out public duties (see Time off for public duties: overview in this series for more details).

Harry is a member of a local authority, which is one of the listed bodies. Therefore, he is entitled to reasonable time off to carry out public duties for the council. Under s.50(3), relevant public duties (in relation to a local authority) are attendance at meetings of the local authority or its committees or sub-committees and doing anything that the local authority has approved to enable it to discharge its functions or those of its committees or sub-committees.

Fair-Minded should also be aware that, if the local authority of which Harry is a member is operating executive arrangements, ie it gives decision-making powers to a smaller group, for example councillors or an elected mayor, rather than requiring decisions to be made by the full council, he will be entitled to time off to attend meetings of that group (or a committee of that group) and/or to do anything else as an individual member of the group for the purpose of discharging the group's responsibilities.

Harry has requested time off to attend council meetings, which are one of the activities that attract the right to time off under the statutory provisions. Therefore, Fair-Minded should grant him reasonable time off.

Fair-Minded decides to grant Harry time off to attend six council meetings per year. Harry asks if he will be paid for the time off.

Does Fair-Minded have to pay Harry for time off to attend council meetings?

Harry has no statutory right to be paid for the time off that he will be taking to carry out public duties. However, Fair-Minded should review his employment contract and its own policies to ascertain whether or not he has a contractual right to be paid for the time off. If there are contractual terms that confer on Harry a right to be paid but Fair-Minded fails to pay, this will amount to a breach of contract entitling Harry to claim damages, unlawful deductions from wages and, potentially, constructive dismissal.

Assuming that there is no express contractual provision or policy that stipulates that Fair-Minded will pay for time off for public duties and no custom and practice is established implying a right to be paid, it can choose whether or not to pay Harry. If Fair-Minded does decide to pay Harry, this may set a precedent for future requests. Other employees may have an expectation that they too will be paid for time off for public duties on the basis that Harry was paid.

Gloria Goodwill works in the same department as Harry. Gloria is a member of the board of a charity, Help-Aid. She requests time off to attend a board meeting. She thinks that, as Harry has been given time off to attend meetings, she should be too.

Is Fair-Minded obliged to grant Gloria time off?

As mentioned above, an employee's entitlement to time off work to carry out public duties depends on whether or not the body of which he or she is a member falls within s.50(2) of the Employment Rights Act 1996. If it does, the functions that the employee carries out must also fall within the statutory provisions (see Activities that attract the right to time off in Time off for public duties: overview). While attendance at a charity's board meeting may appear to be a public duty, the work that Gloria carries out for the charity is likely to amount to voluntary work and will not fall within the statutory definition of a public duty attracting the right to time off. Therefore, Fair-Minded is not obliged to grant Gloria time off.

Assuming that it decides not to give her the time off that she has requested, Fair-Minded should communicate to Gloria the reason for this decision (ie that she does not qualify for the statutory right to time off work). It should also keep a written record of its reason for refusing her request so that it is in a better position to defend itself in the event that Gloria brings a claim against it, for example of discrimination and/or constructive dismissal because of the difference in treatment between her and Harry. It could also advise her that she will need to take annual leave if she wants to take time off.

Fair-Minded could decide, at its own discretion, that Help-Aid is a worthy cause and that it will give Gloria time off to attend its board meeting regardless of the fact that the request does not fall within the statutory provisions. However, it should be aware that, if it does this, it could be setting a precedent for future requests that fall outside the Act and other employees who are involved in similar causes may consider that they are also entitled to time off. It would be prudent for Fair-Minded to adopt a volunteer policy setting parameters and limits on time off to carry out voluntary work, so that requests are dealt with consistently across the firm. (See the XpertHR policies and documents section for a model Policy on supporting employees doing volunteer work.)

In the meantime, Harry asks Jenny for more time off. He has joined some of the local authority's sub-committees and needs to attend six more evening meetings per year. Since his initial request, a couple of his colleagues have left the company and the IT department is short of staff, with some employees on sick leave or maternity leave. While she is happy to accommodate Harry taking time off for six meetings per year, Jenny feels that the IT service that the department can provide will suffer if Harry takes yet more time off.

Does Fair-Minded have to grant Harry's further request for time off?

Not necessarily. Employees are entitled to an amount of time off for public duties that is "reasonable in all the circumstances". Under s.50(4) of the Employment Rights Act 1996, reasonableness depends on how much time off the employee needs to perform the duties; how much time off he or she has previously been given for public duties and trade union duties and activities; the needs of the business and the effect that the employee's absence will have on the business (see How much time off must I give an employee to carry out his or her public duties? in Time off for public duties: frequently asked questions).

Fair-Minded needs to consider these factors when deciding whether or not to grant Harry's request for further time off. Harry's request is for a number of evenings off work and it could decide to grant some, but not all, of the time off requested.

The fact that Fair-Minded has already given Harry some time off can be used to determine whether or not his subsequent request is reasonable, as can the fact that the department is short-staffed and his absence would have a detrimental effect on the business.

Fair-Minded should assess the potential impact that Harry having more time off will have on the IT department and the firm, asking Jenny for details as appropriate. Having made its decision, it should set this out to Harry. It might choose to refuse Harry's request to attend more meetings in the short term because of its business needs but review this decision if the department's staffing levels increase in future.

If it decides to refuse his request, it should explain its reasons for doing so, and keep a record of this so that it has evidence with which to defend its position in the event that Harry brings an employment tribunal claim against it that it failed to permit him to take reasonable time off under the Employment Rights Act 1996 (see Remedy for failure to permit time off in Time off for public duties: overview).

Next week's topic of the week article will be the first in a new series on disciplinary hearing myths and will be published on 9 July.

Hilary Burgess (Hilary.Burgess@lewissilkin.com) is an associate in the Employment, Reward and Immigration Department at Lewis Silkin.

Further information on Lewis Silkin LLP can be accessed at www.lewissilkin.com.