Changes to facility time and check-off for public sector employers under Trade Union Act 2016

Two sets of Regulations have been published making changes to the operation of facility time and check-off for relevant public sector employers. We look at the impact these will have.

28 March 2017

Public sector employers across the UK should be aware that the Government has published two sets of Regulations under the Trade Union Act 2016, on the subject of the publication of information regarding facility time, and the operation of check-off. These regulations apply to government departments, Scottish Ministers and authorities listed in Schedule 1 to the Regulations, as long as they have at least one employee who is a relevant union official (being trade union officials, trade union learning representatives, or safety representatives).

Facility Time
The first set of regulations, the Trade Union (Facility Time Publication Requirements) Regulations, will come into force on 1 April 2017. These regulations apply to relevant public sector employers with at least one relevant trade union official, and require them to publish certain information relating to time off taken by those officials for trade union duties and activities (known as “facility time”). This covers such activities as trade union duties; accompanying employees to hearings; or receiving training under the Safety Representatives and Safety Committees Regulations.

If the employer has employed the full-time equivalent of more than 49 employees for any seven months in each “relevant period” (the 12-month period from 1 April each year), then the employer must provide the following information in the form of tables indicated in the Schedule to the regulations in respect of the relevant period:

  1. The number of employees who were relevant union officials during the period
  2. The percentage of time spent on facility time
  3. The percentage of the employer’s pay bill spent on facility time
  4. The number of hours spent by relevant union officials on paid trade union activities as a percentage of total paid facility time hours.

This information must be placed on the employer’s website before 31 July in the calendar year in which the relevant period ends, and included in the employer’s annual report, if applicable. The Government will monitor the information published. It is anticipated that efficiency savings will be made just by virtue of the requirement to publish this information, but if this doesn’t happen then the Government may ultimately introduce a cap on the amount of paid time off which an employer’s trade union representatives can take.

The first relevant period starts on 1 April 2017, and therefore the first reports will be due by 31 July 2018.

The second set of regulations, the Trade Union (Deduction of Union Subscriptions from Wages in the Public Sector) Regulations, is currently in draft, but due to come into force on 10 March 2018. From that date, restrictions will be placed on deduction of union subscriptions from wages (“check-off”) in the public sector. Employers may operate check-off systems as long as affected workers have the option to pay their trade union subscriptions by other means, and the trade union is making a reasonable payment to the employer for operating the check-off system.

In 2015, the Government had announced its aim to abolish check-off entirely in the public sector, but was prevented from doing so as many check-off arrangements were incorporated into contracts of employment. Consequently, these regulations represent a compromise position.

If you have any queries as to how the regulations will affect your organisation, please get in touch with your usual Shepherd and Wedderburn contact.