For most employers where a trade union is recognised there will be a recognition agreement which will detail processes and rights to time off for union reps. However, when those agreements fall down a reps right to time off is based on legislation itself, in this case section 168 of the Trade Union and Labour Relations (Consolidated) Act 1992.
Because of the prevalence of facility time agreements with employers there has been relatively little caselaw on enforcing the legal rights to time off but my impression since local agreements dealt with disagreements in house. This may well change in the future as employers, especially in the public sector, renege longstanding agreements following the lead from the Cabinet Office’s facility time reviews.
Where this has happened the amount of facility time being taken by reps has drastically decreased, my impression is this is down to uncertainty over how time off must be granted with reps hitherto used to managing time off in concert with the employer (for example, taking every Tuesday off for union activities). The result is that the valuable work that local reps were doing is no longer being done.
This needs to change, and with it a general awareness among reps that time off is not dependent on an agreement with the employer (although that is obviously beneficial) but is a legal obligation.
However, that legal obligation is only engaged when a request is made to the employer which is where many of the current difficulties arise (the requests are not being made in the first place). This was made clear in one of the few judgements on trade union facility time Ryford Ltd v Drinkwater.
Unlike other statutory requests for time off in legislation the legislation does not expressly say that an employee must make a request for time off but in Drinkwater it was found that was implicit in the statute and that a) a request must be made, and b) this request must have come to the attention of the employer:
We have looked at this matter with care and, doing the best we can, we are quite satisfied that the proper construction of s.168, by way of construction of ordinary words of the English language, plainly requires that the employer should know of and be apprised of the request for time off before he can “fail to permit” time off. In our judgment, you can only “permit” or “allow” something if you know what is being asked of you. Similarly, you can only “fail to permit” or “refuse to allow” something if you know what is being asked of you. In our judgment, the concept of permission must import knowledge of a request for permission. We derive assistance from the use of the verb “failed” in the expression “failed to permit”. You can only “fail” to give permission if permission has been sought of you, in our judgment. Similarly, s.172(2) speaks of the employer’s “default” in failing to permit time off.
For those reasons we are satisfied that it is necessary for an employee to establish that his request has come to the notice of the appropriated designated representative of the employers before he can say that the employer has failed to permit him to take time off and, accordingly, that is a necessary prerequisite to his making any claim under s.168(4). We do not think that this question of whether the employer knew of a request for time off can be subsumed under subsection (3) because that subsection is concerned, in our judgment, specifically with the amount, the purpose for which, the occasion on which and the conditions subject to which, time off may be taken. Thus, in our judgment, subsection (3) appears to assume that a request has been made and has come to the notice of the employer so that the employer as well as the employee, can consider the specific matters in subsection (3), namely, questions as to the amount which, the occasions on which, the purposes for which, and the conditions subject to which time off may be taken.
In short, in order to be able to enforce the legal right to time off for trade union duties the rep of a recognised union must be able to show “on the balance of probabilities, that a request was made for time off, that it came to the notice of the employers’ appropriate representative, and that they either refused it, ignored it or failed to respond to it.”
Although a request need not be in writing it is very strongly recommended it should be. The following should be sufficient:
Dear [Appropriate manager]
Request for time off for Trade Union Duties (Section 168 of the Trade Union and Labour Relations (Consolidated) Act 1992).
On [insert date] I am required to undertake trade union duties [insert explanation of duties] which will commence at [insert time]. I estimate this will take approximately [how many hours].
This will be conducted at [insert where the time will be taken].
I would be grateful if you could confirm this time off is approved.
Ryford Ltd v Drinkwater  UKEAT 723_94_2405