Time off for public duties: frequently asked questions

Katherine Shaw of Lewis Silkin continues a series of articles on the right to time off for public duties with some frequently asked questions that consider, among other matters, to how much time off employees are entitled and whether or not they have to give notice to their employer that they want to take time off. 

Are magistrates entitled to time off work to carry out their public duties?

Yes. Magistrates are also known as "Justices of the Peace". Section 50 of the Employment Rights Act 1996 requires employers to permit employees who are a Justice of the Peace to take time off during working hours for the purpose of performing any of their duties of office.

In practice, the main public duty for which a magistrate will be entitled to take time off is attendance at court. Magistrates must attend court for a minimum of 26 half days per year, but they can be required, or volunteer, to attend more frequently. The Magistrates' Association (external website) estimates that most magistrates are in court for the equivalent of 18 days per year. The amount of time off to which a magistrate is entitled is not unlimited; the Act provides that it is limited to whatever is reasonable in all the circumstances taking into account:

• how much time off the magistrate requires to perform his or her duties;
• how much time off the magistrate requires to perform the particular duty in question;
• how much time off the employer has already permitted the magistrate to take to carry out public duties or trade union duties and activities;
• the circumstances of the employer's business; and
• the effect of the magistrate's absence on the running of the employer's business.

Are local authority councillors entitled to time off to carry out their functions?

Whether or not a local authority councillor is entitled to take time off work for public duties depends on the functions that he or she will be carrying out. Unlike Justices of the Peace (ie magistrates), councillors are not entitled to time off for all their public duties. Their entitlement to time off is limited to circumstances when the purpose of the time off is:

• to attend meetings of the local authority or its committees or sub-committees;
• to do anything that has been approved by the local authority for the purpose of the discharge of its functions or those of its committees or sub-committees; and
• where the local authority 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), to attend a meeting of the executive (or a committee of that executive) and/or to do anything else as an individual member of that executive for the purpose of discharging functions that are the executive's responsibility.

Therefore, entitlement to time off depends on the functions for which the local authority gives approval. For example, a local authority councillor may be entitled to take time off to attend committee meetings, do site visits and hold surgeries (provided that the amount of time off is reasonable in all the circumstances) if these are approved by the relevant local authority as a means of enabling it to discharge its functions.

How much time off must I give an employee to carry out his or her public duties?

The statutory provisions on time off for public duties do not define how much time off employers must give employees other than to specify that the amount of time off must be "reasonable in all the circumstances". Under s.50(4) of the Employment Rights Act 1996, when determining whether or not the amount of time off is reasonable in all the circumstances, employers should have regard to:

• how much time off is required for the employee to perform the duties of his or her office, or as a member of the body in question, and how much time off is required for him or her to perform the particular duty;
• how much time off the employee has already been permitted to take for public duties or trade union duties and activities; and
• the circumstances of the employer's business and the effect that the employee's absence will have on the running of the business.

Employers should consider the whole circumstances, including the number and frequency of similar periods of time off that they have previously permitted the employee to take.

If decisions about granting time off requests are made centrally, for example by the HR department, it may be appropriate for it to seek the opinion of the relevant line manager about the potential effect of the employee's absence on the business. In the event that an employer refuses a request for time off and the employee brings a claim against it (see Remedy for failure to permit time off in the first article in this series for more details), it will be in a better position to show that the amount of time off was not reasonable if it has evidence that the absence would have had a detrimental effect, than if it simply refused the time off without investigating further.

Altering working hours is unlikely to equate to granting time off and it may be appropriate for the employer to reduce the employee's workload to reflect the time off that it has granted. If employees have to make up the time off in their own time, to complete their workload, they will not have been granted time off under the provisions.

Where an employer has a policy that deals with time off for reasons other than for public duties (such as time off for compassionate leave), the length of time off that it permits under this policy is unlikely to be a relevant factor in determining if the amount of time off is reasonable in all the circumstances (with the exception of time off for trade union duties and activities, which can be taken into account).

Do I have to give an employee who is a school governor time off to attend meetings?

Yes. Under s.50 of the Employment Rights Act 1996, an employee who is a member of a "relevant education body" (see Time off for public duties: overview for a definition of "relevant education body") is entitled to take reasonable time off work to attend meetings of the body or its committees or sub-committees. Therefore, school governors qualify for the right to take reasonable time off to attend governors' meetings.

Do employees have to give notice of their intention to take time off for public duties?

The provisions relating to time off for public duties do not require employees to give a specific period of notice or follow a particular procedure when requesting time off. However, employers may set conditions on the exercise of the entitlement to take time off and it is reasonable for employers to expect their employees to comply with notice requirements.

Any "condition subject to which time off may be so taken", including conditions relating to notice, must be "reasonable in all the circumstances" (under s.50(4) of the Employment Rights Act 1996). Therefore, employers should ensure that notice requirements are realistic and workable.

Are employees entitled to take time off to perform voluntary work for a public organisation such as a school, hostel or hospital?

An employee's entitlement to time off to perform voluntary work for a public organisation depends on whether or not that voluntary work constitutes a public duty under s.50 of the Employment Rights Act 1996 (see Time off for public duties: overview for more details).

Some voluntary work that might at first glance appear to amount to a "public duty" is not covered by the Act, even if it is performed for one of the public bodies listed in it. To enjoy the entitlement to take time off, an employee must be a "member" of a relevant body and need the time off for one of the specific purposes listed in s.50 of the Act (for example to attend meetings).

Voluntary work that falls outside s.50 (for example, work helping in a classroom, local authority residential home, hospital shop or hostel kitchen) is not covered and employees have no statutory right to time off to carry out this type of work. However, some employers grant time off under a volunteer policy. (See the XpertHR policies and documents section for a model Policy on supporting employees doing volunteer work.)

Next week's topic of the week article will be a case study around the right to time off work for public duties and will be published on 2 July.

Katherine Shaw (Katherine.Shaw@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.