Claire Darwin KC and Harry Sheehan consider how the new s.168B of the Trade Union and Labour Relations (Consolidation) Act 1992 will work, and its implications for equality in the workplace.
The role of a trade union equality representative (“equality representative”) is an established one in many unionised workplaces. For example, the EHRC Statutory Code of Practice on Employment provides at paragraph 17.3 that employers should consult with equality representatives “as a first step towards understanding the diverse needs of workers”, and that employers should involve equality representatives in the active monitoring of their equality policies (§18.31). Similarly, the EHRC Statutory Code of Practice on Equal Pay provides at paragraph 112 that “when obtaining information on pay, an [equality representative] can assist in the process” of an employee obtaining information in order to establish whether he or she is not receiving equal pay.
However, until now, equality representatives have lacked the specific statutory rights to paid time off and facilities enjoyed by trade union officials carrying out certain trade union duties, trade union learning representatives and trade union health and safety representatives, and this had to be agreed with employers. Section 65 of the Employment Rights Act 2025 will change this by inserting a new s.168B into the Trade Union and Labour Relations (Consolidation) Act 1992 (‘TULRCA’), to provide equality representatives with comparable statutory rights to paid time off and reasonable workplace facilities. The new s.168B is expected to come into force on 30 October 2026.
Background
Section 168 TULRCA (Time off for carrying out trade union duties) provides that employers must permit employees who are officials of an independent trade union recognised by the employer to take time off for the purpose carrying out trade union duties (within the meaning of s.168(1)(a) – (e) TULRCA), and to undergo relevant training as per s.168(2) TULRCA. Section 168(3A) requires an employer to provide a trade union official permitted to take time off with such accommodation and other facilities and to undergo training as is reasonable in the circumstances. A trade union learning representative enjoys similar rights under s.168A TULRCA. Further, some health and safety legislation provides that trade union health and safety representatives are entitled to paid time off to fulfil their roles or to attend training.
The New s.168B
The new s.168B extends the previous regime so that it now applies to equality representatives of an independent trade union recognised by the employer, allowing them to take time off during their working hours, both for the purposes that are listed in the new s.168B(2) and in order to undergo training relevant to their functions as an equality representative (per s.168B(7)).
The list of prescribed purposes at s.168B(2) is drafted broadly and includes “carrying out activities for the purpose of promoting the value of equality in the workplace” (s.168B(2)(a)) and “obtaining and analysing information relating to equality in the workplace” (s.168B(2)(e)). Importantly, the list of purposes given at s.168B(2) is much broader than simply preventing or responding to conduct prohibited by the Equality Act 2010, illustrating that the role of an equality representative is intended to be proactive, and is to take the initiative in promoting equality.
The term ‘equality’ is specifically defined at s.168B(12)(b) and includes “the advancement of equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it” and “the fostering of good relations between persons who share a relevant protected characteristic and persons who do not share it”. Protected characteristics are defined at s.168B(12)(c), and replicates the characteristics protected by s.4 of the Equality Act 2010 save that ‘marriage and civil partnership’ is not included.
An employer that permits an equality representative to take time off must also, where requested, afford that equality representative “such accommodation and other facilities in relation to the purposes for which the employee takes time off as is reasonable in all the circumstances” (s.168B(9)). Section 168B(9) expressly recognises that what is reasonable in all the circumstances should be assessed by reference to any relevant provisions of a Code of Practice issued by ACAS.
The Code of Practice
A draft version of the Code of Practice has been issued by ACAS pursuant to s.199(1) TULRCA. The current version (see here), published on 10 July 2026, has been formally laid before Parliament pursuant to s.200(2)(a) TULRCA, and is in part subject to the negative resolution procedure under s.200(4) TULRCA. Subject to Parliamentary approval, the Code of Practice is expected to come into effect on 30 October 2026.
Pursuant to s.207(2) TULRCA the Code of Practice will be admissible in evidence before an Employment Tribunal or the CAC, and any provision of the Code of Practice which appears to an Employment Tribunal or the CAC to “be relevant to any question arising in the proceedings” must be taken into account by them when determining that question.
Employers with an existing unionised workforce will need to negotiate with their trade unions as to the amount of time off to be afforded to equality representatives and regarding the accommodation and facilities they are to be provided with.
The ‘training requirement’
The rights afforded by s.168B are subject to the ‘training requirement’ which is at s.268B(4), which, most importantly, says at s.168B(4)(a) that the requirement will be met if “the employee has undergone sufficient training to enable the employee to carry on activities mentioned in subsection (2), and the trade union has given the employer notice in writing of that fact”.
The new section does not set out what it means for training to be ‘sufficient’ to carry out the activities listed at sub-section (2), and there may be some dispute about this. On the one hand, an employer may seek to argue that the requirement for sufficient training is more onerous, so as to exclude a proposed equality representative who has not met that threshold. On the other hand, however, the more onerous the requirement for ‘sufficient’ training is, arguably the broader the scope of the purposes of the representative and so the greater their need for paid time off and facilities.
Furthermore, in order to act as an effective equality representative for a trade union, and specifically to achieve their purpose of “consulting with the employer on matters relating to equality in the workplace” per s.168B(2)(d), the representative will need a broader familiarity with the principles of collective bargaining and organising a workforce. Those may also be contained within the meaning of ‘sufficient training’, although an employer may be reticent to provide time off and facilities for such training.
Information Relating to Equality in the Workplace
As quoted above, the new s.168B(2)(e) expressly makes one of the purposes of an equality representative “obtaining and analysing information relating to equality in the workplace”. This is not further defined in TULRCA, however, one example of the type of information that an equality representative might obtain is given at §14.7 of the EHRC Statutory Code of Practice on Employment:
Example: A trade union equality representative obtains statistics which show that the best scores for appraisals are disproportionately awarded to white male workers. As a result, this group is more likely to receive an increase in pay and annual bonuses. The statistics suggest that the policy could be indirectly discriminatory, either through the criteria that have been selected, or the way that these criteria are applied.
Further examples of information relating to equality in the workplace given in the ACAS Code of Practice include:
However, whereas section 181 TULRCA imposes a clear duty on employers to disclose certain information to trade union representatives that is required for the purposes of collective bargaining, there is no equivalent provision within s.168B imposing a duty on employers to disclose to equality representatives any information relating to equality in the workplace. However the wording of s.168B(2)(e) may suggest that the disclosure of information relating to equality could fall within the obligation on employers at s.168B(9) TULRCA to provide equality representatives with such “other facilities” as is reasonable in all the circumstances in relation to the purposes for which the equality representative takes time off. There is also an argument that the duty to disclose such information might arise under s.181 TULRCA itself where equality information is necessary for collective bargaining. This could be a fertile area for dispute as trade unions often complain that they need better data about the workforce which employers refuse to disclose on a voluntary basis. It is likely that some unions may use the facilities right of equality representatives to compel information that some employers have traditionally withheld.
[Failing that, equality representatives may need to rely on other routes in order to obtain such data, for example, the publication by various public authorities of data pursuant to the Equality Act 2010 (Specific Duties and Public Authorities) Regulations 2017/353. Further, employers may be persuaded to provide information about equal pay voluntarily, mindful that - as set out above - this is envisaged by the EHRC Statutory Code of Practice on Equal Pay.] Further, an employer’s failure to allow equality representatives to obtain and analyse equality information is something that an Employment Tribunal may take into account alongside other evidence when considering whether a prima facie case of discrimination is established, particularly when such conduct could suggest a failure to take equality in the workplace seriously.
Enforcement
Section 168B(10) provides that an employee may present a complaint to an Employment Tribunal if an employer fails to permit the employee to take time off or to provide facilities in accordance with s.168B. Interestingly, section 168B(11) provides that if the complaint relates to a failure to permit the employee to take time off, it is for the employer to show the amount of time the employee proposed to take was not a reasonable amount of time off. The reverse burden of proof in respect of such complaints will make it comparatively easy for equality representatives to present compelling claims to the ET, and accordingly, employers would be well advised to devise and document their reasons for refusing any requests for time off with real care and only rely on clear business disadvantages.
Remedies
The significance of such complaints is likely to lie in the Employment Tribunal’s assessment of what time off and facilities the employer was required to provide in the circumstances. Such findings may have significant operational consequences for the employer concerned and may subsequently be relied upon as benchmarks in negotiations involving other employers.
However, under s.172(1) TULRCA, where a complaint is well founded, an Employment Tribunal must make a declaration to that effect and also has a discretion to make an award of compensation to be paid by the employer to the equality representative.
The amount of any compensation shall be such as the Employment Tribunal considers “just and equitable in all the circumstances” having regard to both any loss sustained by the employee which is attributable to the matters complained of and the employer's default in denying the employee their rights in question (s.172(2) TULRCA).
The established principles governing awards of compensation under s.172 TULRCA would apply (see Skiggs v South West Trains Ltd [2005] IRLR 459). Even though the purpose of such an award is compensatory, rather than punitive, s.172(2) TULRCA allows an Employment Tribunal to award compensation even though an employee has not suffered any financial or other loss (because for example they were paid in full by the employer in respect of the period in question). However, the Employment Tribunal’s ability to award compensation for non-pecuniary losses under s.172(2) is unlikely to extend to making awards of compensation for injury to feelings (see by way of analogy Rowe v London Underground Limited UKEAT/0125/16/JOJ). Any award made under s.172(2) TULRCA is likely to be a modest one. By way of example, in 2023 an employer held to have wrongly refused a trade union official leave to carry out trade union duties was ordered to pay him £2123 in compensation.
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