Attending Union and Health and Safety Meetings May Count as Working

Time spent in union and health and safety meetings may count as working time under the Working Time Regulations 1998.

In Edwards and another v Encirc Ltd, Mr Edwards was an employee health and safety representative and Mr Morgan was a union shop steward. They attended health and safety and union meetings which took place during the day time and outside their shift hours of 7pm to 7am. They argued time spent in these meetings was working time. This meant that their employer was not providing them with 11 hours of uninterrupted rest between shifts.

The employment tribunal ruled that time spent on trade union duties or attending health and safety committee meetings was not “working time” for the purposes of the Working Time Regulations 1998 (“WTR”).  The employer was not therefore in breach of its obligation to provide 11 hours of uninterrupted rest.

Working time is defined as “any period during which the worker is working, carrying out his duties, and at the employer's disposal”. Although time spent at such meetings was time during which they were working, they were not carrying out their duties which involved the manufacturing of glass containers. They were not at their employer’s disposal as they could not be required to forsake their representational role in the interests of the company. They were at the meeting to represent colleagues and as such they were beyond their employer’s control and direction. All three elements of the definition of working time had to be satisfied and so time spent in union and health and safety meetings was not “working time”.

The employees appealed to the Employment Appeal Tribunal (“EAT”). The EAT ruled that the tribunal had taken too narrow approach to what constitutes “working time”. In order for workers to be at their employer’s disposal it is not necessary for them to be under the employer’s specific control and direction. EU law allows for a wider approach. It is sufficient that the employer has required them to be in a specific place and to hold themselves out as ready to work. The tribunal ought to have taken account of the fact that the employer had required Mr Edwards and Mr Morgan to attend the meetings, had decided when and where they were to take place and how they were to be conducted.

Similarly there is no requirement that the activity or duties must be solely the specified contractual duties. If a worker is engaged in activities that arise from the employment relationship and in the broader sense benefit the employer’s business, this is sufficient.

The case was sent back to the same tribunal to reconsider the issue.

Whether time spent in health and safety and union meetings counts as working time will depend on the facts of each case. Nevertheless a broad interpretation of what amounts to working time seems likely. The issue is an important one because it will affect whether the employer is complying with the rules on the 48 hour working week, night work and daily and weekly rest breaks.

Following on from this case, employers may receive requests from unions seeking to negotiate to widen or clarify the scope of union duties that count as working time.