Managing employees’ time off for public duties

The recent Local Elections have resulted in a number of new local councillors across England, a significant number of which will be and will intend to remain as employees of their current employers whilst also carrying out their public duties.

Understanding employee rights to time off to perform public duties

Under section 50 of the Employment Rights Act 1996, employees are entitled to reasonable unpaid time off to perform public duties.  For any newly elected councillors, this may include attending meetings relating to their role, committees and hosting of events or even the induction and orientation for their new appointment. A list of which positions qualify for ‘reasonable unpaid time off’ can be found here.

The Employment Rights Act does not set out how an employee in these circumstances should request time off, nor does it outline under what circumstances an employer can refuse such a request. That being said, the Employment Tribunal cases that have arisen since this right was introduced suggest that refusal of a request will only be reasonable in very limited circumstances. If an employee believes that an employer has not been reasonable in refusing any request, they are entitled to make a complaint to the Employment Tribunal and, should the Employment Tribunal find in the employee’s favour, they are permitted to award such compensation as they consider to be just and equitable in the circumstances.

How to respond to a request for time off to perform public duties

If an employer is asked to allow time off in these circumstances, their manager should meet with the employee to discuss, in detail, their expected commitments.

When assessing specific requests, employers need to be mindful of the following:

• How much time off is required to perform the relevant duty and the duties of the office in general.
• How much time off for public duties the employee has already been permitted.
• The circumstances of the business and the effect of the employee’s absence on the running of that business.

It is important to note that there is no legal obligation to pay employees when taking time off for public duties so, should an employer choose to do so, it should be made clear that this is at their absolute discretion and permitting pay on one occasion does not mean that there is any entitlement to pay for any additional periods of leave.

Advice for employers in managing employee public duty leave

It can be useful for employers to have a policy in place which sets out their expectations should any employee wish to take time off for public duties. It is common for this policy to also cover other entitlements to statutory time off such as jury duty or military reserve duties.

Employers should also be aware that, should the employee’s time commitment to public duties start to increase, they may need to consider a flexible working approach.

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