Facility time FAQs

As well as the following FAQs, Michael Kidd, ASCL Employer Engagement Leader, explains the background to and processes around facility time in this information paper

In 1975, the Employment Protection Act was introduced, which included a statutory right to paid time off for trade union representatives to undertake training and trade union “duties”. The Act also gave Acas the responsibility for publishing Codes of Practice containing practical guidance for the purpose of promoting positive industrial relations. The statutory right to paid time off, and various editions of the Code of Practice have been in place ever since.

In addition to guidance around the provision of facility time, the Acas Code of Practice contains guidance around the provision of certain other facilities intended to assist trade union representatives in discharging their duties. These might include accommodation, access to a telephone, secure storage, the use of noticeboards, confidential space to speak with members, and access to members working at another location. Generally, the details of all facilities (including facility time) are contained within a “Facilities Agreement” or a “Trade Union Recognition Agreement”.

All employers are under a statutory obligation to provide facility time and all trade union (TU) representatives from recognised trade unions have a statutory right to reasonable paid time off for undertaking TU duties.

Trade union representatives and members also have a statutory right to reasonable unpaid time off for undertaking TU activities.

In some circumstances paid time off for TU activities may be achieved through negotiation.

Yes. The Trade Union (Facility Time Publication Requirements) Regulations 2017 came into force on the 1 April 2017. These regulations place a legislative requirement on relevant public sector employers to collate and publish, on an annual basis, a range of data on the amount and cost of facility time within their organisation.

The work a trade union representative undertakes falls into two categories, duties and activities. Representatives must be given reasonable paid time off from their normal role to undertake duties, while activities are generally unpaid and can be undertaken by representatives or members.

Local agreements or contractual arrangements are sometimes in place to provide paid release for certain trade union activities. An example of this is found in the Burgundy Book which provides for paid release to attend trade union annual conferences.

Trade union duties are undertaken by accredited trade union representatives and are defined within the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) Section 168. Acas also publish a statutory Code of Practice on time off for trade union duties and activities. Examples of trade union duties are:

  • Negotiating pay, terms and conditions (for an ASCL Local Representative, in practice this usually means attending trade union joint negotiating committees – JNCs)
  • Helping union members with disciplinary or grievance procedures including meetings to hear their cases
  • Going with union members to meetings with their line manager to discuss flexible working requests
  • Discussing issues that affect union members like redundancies or TUPE transfers.

Trade union activities can be undertaken by accredited trade union representatives or members and are defined within the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA) Section 170. Acas also publish a statutory Code of Practice on time off for trade union duties and activities. Examples of trade union activities include: 

  • Attending workplace meetings (including at various sites if required) to discuss and vote on the outcome of negotiations with the employer.
  • Meeting employed officials to discuss issues relevant to the workplace
  • Voting in union elections
Where the member is a representative of a recognised union, activities can be, for example, taking part in:
  • Branch, area or regional meetings of the union where union business is under discussion
  • Meetings of official policy making bodies such as the executive committee or annual conference (nb the Burgundy Book states that paid release must be available for such meetings if required). 
Although industrial action is a form of trade union activity, members do not have a right to time off for activities which in themselves consist of industrial action. Industrial action is protected separately in law within TULRCA Part V.

In some circumstances, paid time off for TU activities can be achieved through negotiation.

Neither the legislation, nor the Acas Code, prescribe what is ‘reasonable’ time off for trade union duties and activities. The DfE guidance “Advice on trade union facility time” suggests that “trade union representatives should be grounded in classroom practice, and should spend more than 50% of their time in the classroom”; it should also be carefully noted that non-teaching support staff union representatives are also entitled to facility time on exactly the same basis.

The unions agree that trade union representatives in the education sector should be encouraged to maintain links with the workplace: indeed, many trade union activities contribute to this. The legislation does not prescribe that time off for trade union duties should be a percentage of contracted working hours. What is reasonable will depend on the circumstances and if disputes cannot be resolved locally, decisions will ultimately rest with the Employment Tribunal. Tribunals may consider the kind of work the employer does, workloads, the needs of managers and colleagues, the amount of the time the trade union representative has already had off for trade union work and the importance of health and safety at work. Employers should be aware that using a blanket percentage of working time to determine what is reasonable time off could lead to claims that the statutory right to reasonable time off has been breached and should treat the case for each individual trade union representative case on its own merits.

Trade union representatives have had a statutory right to reasonable, paid, time off from employment to carry out trade union duties and to undertake trade union training since the Employment Protection Act 1975. Union representatives and members also have a statutory right to reasonable unpaid time off when taking part in trade union activities. Acas says:
“Union representatives undertake a variety of roles in collective bargaining and in working with management, communicating with union members, liaising with their trade union […] There are positive benefits for employers, employees and for union members in encouraging the efficient performance of union representatives’ work, for example in aiding the resolution of problems and conflicts at work. The role can be both demanding and complex. In order to perform effectively, union representatives need to have reasonable paid time off from their normal job in appropriate circumstances.”

Employers and trade unions are free to agree arrangements which exceed the statutory minimum facilities requirements in order to aid and improve industrial relations. Employers should not apply arrangements so that the rights to facility time are unlawfully reduced below the statutory minimum.

This is “non-statutory advice”. Employers and school leaders are not required to follow it but should have regard to the advice, in particular in respect of the recommendation to ensure that facility time arrangements are recorded in writing and regularly reviewed.

Generally speaking, yes. Facility time agreements are usually “collective agreements” which means that they transfer automatically to the new employer. They are treated as if they were originally made with the new employer. The DfE provides a helpful reminder that, “Following a TUPE transfer, an academy should comply with any existing facility time agreement until they give notice that they want to end or re-negotiate this agreement”. Any changes to facility time agreements, including funding, must be the subject of negotiation between the employer and the recognised trade unions.

In the first instance, funding for facility time is delegated to schools (maintained, academies and free schools). However, within the maintained sector, the schools forum and local authority can propose to de-delegate a portion of funding to be held centrally. These centrally held funds are referred to as “Pooled Facility Time Arrangements” or “pooled arrangements”.
Schools forum is usually responsible for setting a per pupil cost for calculating the de-delegation amount from each school. In some local authorities, schools forum revisits the per pupil cost annually and in others the cost may remain static for many years. Once a per pupil cost has been agreed, some local authorities de-delegate the cost from all maintained schools, some de-delegate from only the primary or secondary sectors, and some do not de-delegate at all.
Local authorities cannot de-delegate funds from Academies but the vast majority allow academies to contribute to pooled arrangements if they choose to. Larger pooled arrangements lead to greater efficiency in the use of facility time.

There are two main reasons for this. Firstly, each Schools Forum sets the cost based on the amount of time required locally. As an example, some pooled arrangements provide time for local representatives to undertake all categories of trade union duty, where others might restrict the duties that can be undertaken using this funding – the more trade union duties which can be undertaken during time paid for from the pooled arrangements, the higher the cost may be. It should be noted that trade union representatives are entitled to paid time off for all trade union duties, so if certain duties are not funded by pooled arrangements, employers remain under a statutory obligation to provide paid time off by other means.

Secondly, some local authorities opt to bundle the facility time de-delegation figure together with other offers such as cover for jury service, or provision of CPD or training, increasing the attractiveness of paying into the arrangements but also pushing up the price.
This is also one of many examples of the differences in funding between local authorities and explains some of the differences in the GAG funding that academies get, as this is currently calculated by replicating LA models. Some trusts make the necessary arrangements for each individual academy to pay the appropriate amount for their respective local authority, whereas others adopt a levelling out approach whereby the total cost of contributing to all relevant pooled arrangements is divided equally between each academy.

Within each pooled arrangement there should be a clear understanding of how much facility time each recognised union is entitled to or how facility time will be calculated and allocated. Each union should be entitled to nominate a trade union representative from any contributing employer and their employer should be able to claim the cost of the representative’s release back from the pooled arrangements. The release time can be used to support members working for any contributing employer.
The most efficient way of distributing facility time should be a matter for local agreement, though our expectation is that it will be based on core time to allow a representative from each union to attend relevant meetings plus time based on the number of members. It is for the employer and the recognised trade unions to discuss what facility time is reasonable in the context.

This will depend on the terms within the local agreement. Pooled arrangements aim to lead to economic and efficient outcomes, but it is important to remember that while employers have a statutory obligation to provide facility time, they do not have a statutory right to recover the full costs necessarily.

When a local authority chooses not to de-delegate from some or all maintained schools, it may choose to continue to maintain a pooled fund, relying on schools opting to contribute to pooled arrangements. In such cases, trade union representatives accessing facility time from such arrangements will only be able to provide support to members working for contributing employers.

All employers must provide facility time, whether pooled arrangements are in operation or not. If the local authority does not operate any pooled arrangements, schools should negotiate appropriate written agreements locally to ensure they are meeting their statutory obligations.
While pooled arrangements are typically held by local authorities, some trusts have opted to operate their own pooled arrangements which other trusts can choose to contribute to.

Managing industrial relations can be one of the most rewarding elements of management and members are likely to find that these pooled arrangements are the simplest, most effective, and most efficient way to manage these. All trade unions recognise pooled arrangements as the least disruptive way of providing facility time.
Pooled arrangements mean that multiple schools can share the cost of trade union representatives between themselves. Without such arrangements, each employer must allow paid time off for representatives from every teaching and support staff union, including training time, meaning that the cost can escalate rapidly. For some unions, training can take around 10 days each year and potentially there could be up to 8 workplace representatives of the various recognised unions in every school and academy. The cost of providing this would self-evidently surpass the per-pupil cost of contributing to pooled arrangements.

Schools will also generally find that the more experienced local trade union representatives they will have access to may help to resolve issues at an early stage and often informally.
Most importantly, schools should remember that if they opt out of pooled arrangements, they must come up with an alternative way to discharge this statutory obligation.

If an employer cannot, or chooses not, to contribute to pooled arrangements, it will still need to set out how it will meet its statutory obligations. Employers in this situation should seek a meeting with all the recognised trade unions at the earliest opportunity to negotiate a written agreement.

There should be no presumption against facility time being full-time. Although the DfE advice states that, “no teacher funded by the taxpayer should work full time on union work,” and goes on to state that that employees’ “working hours should be spent principally on carrying out their main duties as an employee,” it is a matter for the employer and the recognised trade union to agree what is reasonable in all the circumstances; it should again be carefully noted that non-teaching support staff union representatives should be treated on exactly the same basis. The advice does not define what an employee’s “main” duties are. The unions believe that it would be dangerous for employers to make an interpretation of what is meant by the term “main” duties in this part of the advice. Employers are urged to continue to apply the clear principles set out in the legislation and the Acas Code of Practice. 

In such circumstances, other employers (such as trusts) continue to have a statutory responsibility under TULRCA to permit paid and unpaid time off for certain duties and activities. Employers will need to consider how they will meet these responsibilities and negotiate a new facility time agreement with the recognised trade unions. A number of academy trusts have devised and appropriately resourced their own in-house facility time arrangements; this will take time and need to be modelled appropriately through negotiation and consultation with the trade unions.

Successive governments have recognised the importance of good industrial relations across all sectors and all employers have a statutory responsibility under TULRCA to provide facility time. The choice around how facility time is funded should not be mistaken for a choice in whether it should be funded.

It does sometimes take a bit of investigation to find out how an employer is discharging their obligations to provide facility time. A good place to start would be your School Business Leader, Finance Officer, Headteacher (or equivalent positions within your employer’s structure). If you’re struggling, email employers@ascl.org.uk and in most cases, we’ll be able to help.