Case update (3): Working time regulations – attending meetings

Summary: Is time spent by a health and safety or trade union representative attending health and safety committee meetings and other union meetings counted as “working time” under the Working Time Regulations 1998?

Yes, says the EAT in Edwards and another v Encirc Ltd, available here.

Facts: The employees, Mr Edwards and Mr Morgan, were a health and safety representative and employee union representative respectively. They attended union meetings during the daytime when they were working night shifts. Their employer, Encirc Ltd, permitted both employees to work reduced night shifts, but the employees brought Tribunal claims which stated that Encirc was in breach of reg.10(1) of the Working Time Regulations 1998 (WTR) by refusing to provide an 11-hour rest period (being a period that is not “working time”) from the end of their respective meetings until the start of their night shifts.

The Tribunal decided, that the employees’ attendance at union meetings was not “working time” and so Encirc was not in breach of the WTR.

The employees appealed. The EAT held that the Tribunal should have taken into account the purpose of the WTR to protect the health and safety of workers by ensuring that they have adequate rest periods between different periods of working time.

The EAT held that in order to be “working time” the activities and duties carried out by an employee must be, in a broad sense, for the benefit of the employer and be carried out as directed by the employer. The EAT decided that activities and duties of both employees in attending the union meetings met these criteria.

Further, the EAT considered that the WTR does not expressly require a worker to be under the direction and control of the employer in order for an activity to be “working time”; it is sufficient if the employer has already required the worker to be in a specific place and to hold themselves ready to work for the employer’s benefit.

The EAT determined that, if Encirc had arranged the union meetings, the employees were at Encirc’s disposal as they were required to come into the workplace to attend these meetings. However, as the Tribunal had not found as a fact that Encirc had arranged the union meetings, the EAT remitted this case back to the Tribunal. Therefore if the Tribunal does find that Encirc arranged the union meetings, Encirc will be in breach of the WTR.

Implications: This case is useful as it is the first EAT decision on whether time spent attending union meetings or health and safety meetings counts as working time under the WTR. Therefore, although this case only relates to health and safety representatives and employee union representatives, Tribunals will most likely be guided by the principles set out in this case even when deciding cases not involving such individuals (e.g. individual union members or other employees attending such meetings).