Time off for public duties: overview

Stephanie Delamare and Katherine Shaw of Lewis Silkin begin a series of articles on the right to time off for public duties with an overview. There is no service requirement for the right to take time off work for public duties and the range of public duties that attract time off is wide.

Introduction

Under s.50 of the Employment Rights Act 1996, employees are entitled to take reasonable unpaid time off during working hours to carry out public duties. 

The right applies only to employees (as opposed to workers) and is not conditional on length of service. It does not extend to the armed forces, share fishermen, merchant seamen, the police service or certain Crown employees. 

Public duties and bodies covered by the right to time off

Employees are entitled to take time off work to carry out public duties only if they hold office as a Justice of the Peace (ie they are an unpaid volunteer who sits as a magistrate with limited authority to administer and enforce the law) or if they are a member of one of the bodies listed in s.50 of the Employment Rights Act 1996. The list of bodies changes from time to time. Therefore, employers should check that the body, of which an employee requesting time off is a member is covered by the provisions at the relevant time.

At present, employees who are members of the following bodies are entitled to time off work to carry out their duties:

• A local authority, which is more specifically defined as:
  • a county council, district council, London borough council, parish council, county borough council or community council;
  • a council in Scotland;
  • the common council of the City of London (the City of London's main decision-making body);
  • a national park authority (one of the legal bodies in charge of national parks); or
  • the Broads Authority (the agency with statutory responsibility for the Norfolk and Suffolk Broads).
• A statutory tribunal (for example the employment tribunals).
• A police authority (ie a designated territorial police force with statutory responsibility for providing policing services and enforcing criminal law).
• An independent monitoring board for a prison. (Every prison has such a board and members visit frequently and hear prisoners' complaints.)
• A prison visiting committee in Scotland (appointed for every remand centre and young offenders' institution).
• A relevant health body, which, more specifically, is:
  • an NHS trust (ie a body established to provide services for the purposes of the health service);
  • an NHS foundation trust;
  • a strategic health authority (ie a body that manages the NHS locally);
  • a local health board (ie a body that provides healthcare services in Wales);
  • a special health authority (ie a body that provides health services nationally rather than to local communities (for example the National Blood Authority));
  • a primary care trust (ie a body that manages primary care services such as those provided by doctors, dentists and walk-in centres); or
  • a health board (ie a body that makes arrangements for the provision of health services in Scotland).
• A relevant education body, which is more specifically defined as:
  • a managing or governing body of an educational establishment maintained by a local authority;
  • a further education corporation, sixth-form college corporation or higher education corporation (designated as such by the Secretary of State);
  • a school council in Scotland (designated as such by the Secretary of State);
  • a parent council (ie a council made up of parents of pupils at a public school in Scotland);
  • a board of management of a college of further education in Scotland (designated as such by the Secretary of State);
  • a governing body of a central institution in Scotland;
  • a governing body of one of certain institutions providing higher education; or
  • the General Teaching Council for Wales (which is a statutory, self-regulating professional body for teachers, the functions of which include advising on teaching issues and promoting professional standards).
• The Environment Agency (which is an executive non-departmental public body with the principal aim of protecting and improving the environment).
• The Scottish Environment Protection Agency (which is Scotland's environmental regulator with the main role of protecting and improving the environment).
• Scottish Water (which is a publicly owned company that provides drinking water and removes waste water in Scotland).

Activities that attract the right to time off

Justices of the Peace can take time off for the purpose of performing any of the duties of office. However, the right to take time off for other public duties is limited to time off for specific purposes, namely:

• to attend a meeting (whether of the body itself or its committees or sub-committees);
• to do anything that has been approved by the body for the purpose of the discharge of its functions (or the functions of its committees or sub-committees); and
• in the case of members of a local authority operating executive arrangements (ie a local authority that 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 meetings of the executive of that local authority (or the committee of that executive) and/or do anything else as an individual member of that executive for the purpose of discharging functions that are the executive's responsibility.

In practice, the right to time off for public duties is usually triggered only in relation to formal duties, such as councillors attending committee meetings, making site visits and holding surgeries. If an employee is a Justice of the Peace, the right includes time off to attend court.

Activities that do not attract the right to time off

Not all activities that might be understood to be "public duties" fall within s.50 of the Employment Rights Act 1996 and attract the right to time off as a result. For example, there is no statutory entitlement to time off to carry out voluntary work for a charity, school, hospital or other organisation, sit on a charity's board, campaign for election as a public official or volunteer for the Olympics. An employee will have the right to time off for these activities only if there is a clear policy or contractual clause stating as much. Preparation time for activities that would otherwise fall within s.50 (for example, to read documentation in advance of a meeting) will not always attract the right to time off. Employers should consider if the activity falls within the specific purposes set out above, and, if it does, whether or not the amount of time off requested is reasonable in all the circumstances (see below).

Nor does s.50 include time off for jury service. Separate provisions (in ss.43M and 98B of the Employment Rights Act 1996) protect employees from being subjected to a detriment or dismissed as a result of being summoned for, or absent from work on, jury service. Employers are not required to pay employees who are absent on jury service and may have a defence against an automatically unfair dismissal claim if the employee's absence is, or was, likely to cause "substantial injury" to the employer's undertaking, the employer brought this to the employee's attention but he or she unreasonably failed to apply to the court to be excused from, or defer, jury service. However, the employee may succeed in a claim of ordinary unfair dismissal if he or she is dismissed for being absent from work on jury service.

Amount of time off

Under s.50(4) of the Act, the amount of time off that an employer must permit an employee to take is determined by what would be "reasonable in all the circumstances" having regard, in particular, 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 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.

The employer should consider all of the circumstances, including the number and frequency of similar absences that it has already permitted the employee to take. If it has previously permitted no absences, this should weigh in the employee's favour.

Conditions

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. Employers may impose conditions on the exercise of the entitlement to time off, and it is reasonable for employers to expect their employees to try to agree with them a pattern for the absences from work and, potentially, to scale down their level of commitment to public duties.

However, employers should exercise some caution when imposing conditions. Section 50(4) provides that any "condition subject to which time off may be so taken" must also be "reasonable in all the circumstances". This will be a matter of fact in each case. Therefore, employers should avoid adopting a blanket policy. Employers should have regard to the same considerations listed above (for determining whether or not the amount of time off is reasonable) when deciding whether or not a condition for taking leave is reasonable.

Pay

There is no statutory right to be paid for time off under s.50 although employment policies, contracts of employment and/or staff agreements may confer a contractual right to payment. In the absence of a contractual right, payment for time off will be at the employer's discretion.

Remedy for failure to permit time off

Under s.51 of the Employment Rights Act 1996, employees can bring an employment tribunal claim if their employer fails to permit them to take time off for public duties under s.50. If a tribunal finds a complaint well founded, it must make a declaration to this effect and may make an award of compensation of such amount as it considers just and equitable in all the circumstances having regard to both the employer's default in failing to permit the employee to take time off and the employee's loss.

However, the tribunal cannot impose conditions (for example, by ordering that the employer should pay a certain number of days' absence per year, but that any excess should be unpaid) or order the employer to grant time off.

Other potential claims may also arise in connection with the right to time off for public duties. Under s.104 of the Employment Rights Act, an employee who is dismissed for asserting a statutory right, including the right to time off for public duties, is automatically unfairly dismissed and requires no qualifying service to bring a claim. Employees may also allege that inequality in how the employer grants time off amounts to discrimination because of a protected characteristic, under the Equality Act 2010.

Next week's topic of the week article will be a checklist for dealing with time off for public duty requests and will be published on 19 June.

Stephanie Delamare (Stephanie.Delamare@lewissilkin.com) is a senior associate and 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.