Introduction
This
document outlines the provisions relating to time off for public
duties contained in employment legislation and explains how a
complaint is dealt with. It gives general guidance only
and should not be regarded as a complete or authoritative statement
of the law.
Further
information can be obtained from any regional office of the Advisory,
Conciliation and Arbitration Service (ACAS).
Outline
of provisions
The
provisions outlined in this document require employers to permit
employees who hold certain public positions reasonable time off
to perform the duties associated with them.
Those
who are covered by the provisions
The
provisions apply to employees who are:
- justices
of the peace;
- members
of a local authority; i
- members
of a police authority;
- members
of any statutory tribunal;
- members
of a relevant health body (see below);
- in England
and Wales, members of the managing or governing body of an
educational establishment maintained by a local education
authority and members of the governing body of a further or higher education corporation;
- in Scotland,
members of a school council or board, a college of further education
or the governing body of a central institution or a designated
institution;
- members
of the General Teaching Councils for England and Wales;
- members
of the Environment Agency or the Scottish Environment Protection
Agency;
- in England
and Wales, members of the boards of prison visitors, and in
Scotland, prison visiting committees;
- members
of the Service Authority for the National Criminal Intelligence
Service or the Service Authority for the National Crime Squad;
- members
of Scottish Water or a Water Customer Consultative Panel.
A relevant
health body means:
-
a Strategic
Health Authority or Health Authority established under section 8
of the National Health Service Act 1977, a Special Health
Authority established under section 11 of that Act, or a Primary
Care Trust established under section 16A of that Act;
·
a Health Board constituted under section 2 of the National Health
Service (Scotland) Act 1978.
Those
not covered by the provisions
The
provisions do not cover:
- anyone
who is not an employee, for example an independent contractor
or freelance agent;
- masters
and crew members engaged in share fishing who are paid wholly
by a share in the profits or gross earnings of a fishing vessel;
- employees
working on offshore oil and gas installations;
- merchant
seamen;
- members
of the police service and armed forces;
- Crown
servants where the public duties are connected with certain
political or other activities restricted under their terms
of employment.
What
duties are covered?
The duties for
which an employer is required to permit reasonable time off are
any of the duties of a justice of the peace, or as regards
membership of any one of the bodies listed above:
-
attendance at
meetings of the body or any of its committees or sub-committees;
-
performance of
duties approved by the body for the purpose of discharging its
functions or those of any of its committees or sub-committees.
In the case of
local authorities operating executive arrangements:
What
is reasonable time off?
The
amount of time which an employee should be permitted to take off
to perform these public duties, and the occasions on which, and
any conditions subject to which, time off may be taken, are those
that are reasonable in all the circumstances, having regard in
particular to the following:
- how much
time off is required overall to perform the duties and how
much time off is required to perform the particular duty in
question;
- how much
time off the employee has already been permitted for this
purpose or for trade union duties and/or activities; and
- the circumstances
of the employer’s business and the effect of the employee’s
absence upon it.
Payment
for time off
While
there is nothing to prevent an employer from making payment to
an employee for time off for public duties, ii
there is no obligation for payment to be made.
Making
a complaint to an employment tribunal
An
employee who considers that his employer has failed to allow him
to take time off he is entitled to, may seek a remedy by complaining
to an employment tribunal.
How
is a complaint made to an employment tribunal?
A
complaint is made by way of an application form (form ET 1 (E&W)
or, in Scotland, ET 1 (Scot)), which is included in the
explanatory booklet Making a claim to an Employment Tribunal.These
booklets are available free from Jobcentre Plus offices, Citizens
Advice Bureaux, from the DTI Publications Orderline on 0870 1502
500, or from the Employment Tribunals Services website.
What
is the time limit for making a complaint to an employment tribunal?
A
complaint must be made to a tribunal within three months of the
date when the alleged failure to allow time off occurred.
Conciliation
The
tribunal will send a copy of the completed form to a conciliator
of the Advisory, Conciliation and Arbitration Service (ACAS),
who will attempt to settle the complaint by conciliation without
the need for a tribunal hearing. The services of a conciliator
will also be available where an individual believes that his or
her employment rights have been infringed, in the absence of a
formal complaint. Either the employee or employer can request
such involvement through one of the regional offices of the Advisory,
Conciliation and Arbitration Service (ACAS).
Information
given to conciliation officers in the course of their duties will
be treated as confidential. It may not be divulged to the tribunal
without the consent of the person who gave it.
Tribunal
hearing
Where
conciliation does not take place or fails, the tribunal will hear
the complaint. Both parties should attend and may claim travelling
and other expenses, including loss of earnings. Tribunal proceedings
are conducted informally and in such a way as to make it easy
for individuals to conduct their own cases if they wish. The parties
may be represented by anyone they wish, including a representative
of a trade union or employers’ association.
Where
a tribunal finds the complaint justified, it will make a declaration
to that effect. It may also order the employer to pay compensation
to the employee. The amount will be that which the tribunal considers
just and equitable in all the circumstances, having regard to
the employer’s failure to permit time off and to any resulting
loss to the employee.
What
if an employee is dismissed for seeking to enforce his or her
rights?
Dismissal
of an employee for seeking to enforce the rights described in
this document, either by making a reference to an employment tribunal
or by alleging that the employer has infringed those rights, is
unlawful. An employee dismissed in these circumstances is entitled
to make a complaint of unfair dismissal to an employment tribunal. This applies whether or not the employee
did in fact qualify for the rights in question and whether or
not they had been infringed, provided that he or she acted in
good faith.
For further information see Unfairly
dismissed? (PL712)
i
For the purpose of this provision 'local authority' means: in
England and Wales, a county or county borough council, a district
council, a London borough council, or a parish or community council,
and in Scotland, a council for any of the local government areas
established in 1996. It also includes the Common Council of the
City of London, a National Parks authority and the Broads Authority
ii
However, where the employer is a local authority it is unlawful
for it to pay for more than 208 hours' time off in any financial
year for the duties of any employee as member (other than the
chairman) of that or any other local authority.
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