Dear
DfE Advice on Trade Union Facility Time
The five main teacher trade unions are writing to local authorities and chain academy
employers to draw attention to the unions’ joint observations on the recently published
DfE Advice on Trade Union Facility Time.

The DfE advice is “non-statutory advice”1. Employers and school leaders are not
required to have regard to the advice or to follow it but are required to comply with
their statutory obligations. The right to time off for trade union duties, activities and
training is in legislation, namely sections 168-173 Trade Union & Labour Relations
(Consolidation) Act 1992, section 10 of the Employment Rights Act 1999, the Safety
Representatives and Safety Committees Regulations 1977, and the ACAS Code of
Practice: Time Off for Trade Union Duties and Activities. Employers and trade unions
are free to agree arrangements which exceed the statutory minimum requirements in
order to aid and improve industrial relations. The DfE advice should not be applied
so that the rights to facility time are unlawfully reduced below the statutory minimum.

The DfE advice acknowledges the “efficiency of ‘pooled’ facility time funds” 2
and recognises that many academies have bought into local facility time
arrangements. De-delegation and central pooling of facility time funding is the least
disruptive to education and means that no single school faces a disproportionate
cost. All schools and school chains are urged to participate in these schemes or to
contact local union representatives locally if it is considered that the local
arrangements could be improved. Employers should be aware that where the
absence of central arrangements means that union members are left unrepresented,
unions will seek trade union representation at school level which is potentially
disruptive as it will undoubtedly necessitate time off for training in addition to time off
for the exercise of trade union duties.

Neither the legislation, nor the ACAS Code prescribe what is ‘reasonable’ time
off for trade union duties and activities. The DfE advice suggests that “trade
union representatives should be grounded in classroom practice, and should spend
more than 50% of their time in the classroom.” 3 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.
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.

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,” 4 it is a matter for
the employer and the recognised trade union to agree what is reasonable in all the
circumstances. 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.

The most efficient way of distributing facility time should be a matter for local
agreement. Based on partial information from one small local authority the DfE
advises that “it should be possible for local union representatives to fulfil their main
union duties in one day a week or less.” 5 Neither the legislation nor the ACAS Code
ranks the defined “union duties”. Each duty has equal weight. Whatever the DfE’s
understanding of “main union duties” is, the DfE clearly accepts that it will not be
possible for all union duties to be carried out in one day a week or less. It is for the
employer and the recognised trade unions to discuss what facility time is reasonable.

Any changes to any facility time agreements, including funding, must be the
subject of negotiation between the employer and the recognised trade unions.
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.” 6
Should any employer wish to discuss the detail of a local arrangement for facility time
please contact our local union representatives.
Yours faithfully
Brian Lightman
Mary Bousted
Russell Hobby
Chris Keates
Christine Blower
1. DfE advice on trade union facility time page 3
2. DfE advice on trade union facility time page 6
3. DfE advice on trade union facility time page 11
4. DfE advice on trade union facility time page 11
5. DfE advice on trade union facility time page 11
6. DfE advice on trade union facility time page 9