Mr A Sparkes v Morrison Data Services Ltd: 1402217/2022

EMPLOYMENT TRIBUNALS

Case No 1402217/2022

Between

Mr A SparkesClaimant

Morrison Data Services LtdRespondent

Before

Employment Judge Mr P Cadney

- MR M PUAR (instructed by COUNSEL) for claimant

- MR S DAVIES (instructed by SOLICITOR) for respondent

Date 17 December 2024

JUDGMENT

The unanimous judgment of the tribunal is that:- The claimant’s claims of: i) Failure permit time off for health and safety activity pursuant to Reg 4(2) of the Safety Representatives and Safety Committees Regulations 1977; ii) Action short of dismissal pursuant to s146 TULR(C)A 1992; iii) Time off for trade union related activities pursuant s170 TULR(C)A 1992; iv) Detriment pursuant to s44 Employment Rights Act 1996. Are not well founded and are dismissed. ---1---

REASONS

[1]By this claim the claimant brings claims (as set out in detail below) pursuant to the Safety Representatives and Safety Committees Regulations 1977; and sections 146, and 170 TULR(C)A 1992; and detriment pursuant to s 44 Employment Rights Act 1996.

[2]The tribunal has heard evidence from the claimant, and Mr Chris Davey on his behalf; and for the respondent from Ms Gemma Tate, Ms Aeisha Mohammed, and Mr Paul Webb.

[3]There is little relevant dispute of fact between the parties; such disputes as there are mainly concern interpretation, understanding and the reasonableness of the positions taken by the parties. Where there are disputes our conclusions are set out in relation to the specific allegation. Background Facts

[4]Parties - The respondent is a national company providing regulatory and field services to energy and water companies. The claimant’s day to day role is field based, reading and inspecting gas and electric meters on behalf of a number of suppliers. He was initially employed by Search Solutions; then transferred to MeterU, and then on 1st April 2018 via a TUPE transfer to the respondent’s employment. The respondent’s standard terms and conditions of employment are contained the Employee Handbook (referred to before us as the Grey Book). As the claimant’s transfer was subject to the TUPE Regulations he, and the other transferring employees, were offered the choice of remaining on their existing terms and conditions, or to transfer to the Grey Book terms. Both the claimant and Mr Davey, and as we understand it, most of the other transferring employees, elected to remain on their existing terms.

[5]Collective Agreement – There are before us two documents relating to trade union recognition. The first is dated 11th November 1996, and the second is a “Note from the Management Side” for a National Staff Committee meeting of 29th March 2001. The second was the version originally in the bundle, but the evidence before us is that it was a proposal which was never ratified, with the consequence that it is the 1996 agreement which remains the relevant agreement for our purposes. The relevant parts of the 1996 collective agreement are those set out below (AccuRead is the former name of the respondent): 1.2….. AccuRead Ltd agrees that the facilities detailed in this agreement will be made available two employees who are accredited representatives of the recognised trade unions in order for them to represent their members at effectively ---2---2.1 AccuRead Ltd is prepared to enter into a recognition and facilities agreement as detailed in this document in respect of the following trade unions-: Unison GMB / (Apex) (TGWU- now Unite and no longer recognised) ) 2.2. The categories of employees to whom this agreement applies are defined as below:- All direct employees in the former gas Staffs and senior officer grades who transferred to AccuRead, All new direct recruits to AccuRead subsequent to the 14th of October 1996 employed in posts equivalent to those covered by transferring employees in those grades and up to but not including at the level of post previously covered by senior management grades. 2.3 the trade unions listed in 2.1 above will be recognised as being able to represent their members on a full collective and individual basis in respect of the following:- i) grievance and discipline; ii) health and safety matters; iii) any statutory right to consultation; iv) collective bargaining on the contractual terms and conditions relating to the eligible employees in

2.2 above; v) consultation on other employee related issues EG training. 2.4. The appointment of trade union representatives is the responsibility of the recognised trade unions. It is in the interests of both accurate and the trade unions that sufficient employees are appointed as trade union representatives to ensure at that the collective bargaining arrangements can operate effectively. However ACU Reed will wish to satisfy itself that unreasonably large numbers of representatives are not appointed. 2.5 the trade unions will advise the human resource is department of the names of their accredited representatives the premises at which they have been appointed and the groups of staff they represent…. 2.6/2.7 – (These refer to training and it is not necessary to set them out in detail). 2.8 appropriate facilities and time off will be granted for the training needs referred to in paragraphs 2.6 and 2.7

[6]Grey Book - It is not in dispute that at the time with which we are concerned, and still, all the parties understood that the respondent regarded non Grey Book employees as falling outside the terms of the collective agreement, at least in respect of direct ---3--- representation on and/or the capacity to sit on the National Staff Council (NSC) or its Health and Safety sub-committee (HSSC); put simply it was understood that it was not open to non-Grey book employees to be members of the NSC (see below). As a matter of fact, we have not seen any documentation in respect of the formation or composition off the NSC and the extent to which Unison and/or the GMB have accepted that limitation on their ability to elect representatives to the NSC. Its existence is referred to in the Grey Book, but it is not referred to in the 1996 Collective agreement at all. However the parties and the witnesses all appear to agree as a matter of fact, that that restriction was understood to be in place at the relevant times, with the result that the claimant, as a non-Grey book employee, and, even though elected as a trade union safety representative, could not sit on the NSC / HSSC.

[7]The evidence of Mr Davey in particular, was that it was understood that by electing to remain on their existing terms the transferring employees would not be Grey Book employees, and that they would not be able to sit on the National Staff Council, which had been established pursuant to the Grey Book and / or collective agreement.

[8]Health and Safety - The respondent’s evidence is that it has a comprehensive system for providing for health and safety, in that it has dedicated Safety Health and Environmental Quality Department (SHEQ), set up for the purpose of overseeing all health and safety matters. It consists of two SHEQ Advisors who report to Ms Mohammed the Senior SHEQ Manager. She in turn reports to the SHEQ director, who reports to the Managing Director. In addition, there is a SHEQ administrative coordinator, and an Occupational Road Risk Manager who is responsible for all risks specifically relating to fleet / vehicle / road related risks.

[9]SHEQ holds quarterly Core Brief Regional Meetings, parts of which are specifically set aside for health and safety issues, which include both receiving any health and safety concerns and conveying health and safety information. It has recently introduced a Safety Steering Group which also holds meetings. Any employee can volunteer to attend these meetings at which health and safety concerns can be raised. In addition, all employees are able to raise any health and safety concerns with their line manager and/or HR. There are accordingly many different routes via which any employee can in any event raise health and safety concerns outside the NSC /HSCC route set out below.

[10]National Staff Council / Health and Safety Sub – Committee - The formal participation of the trades unions in the health and safety process is via the National Staff Council (NSC) of which there is a Health and Safety Sub-committee (HSSC). The NSC consists solely of members of the recognised trade unions, Unison and the GMB and membership is limited to Grey Book staff members (as set out above). Again, as set out above we have seen no documentation in relation to the establishment or composition of the NSC, or in particular the limitation on participation to Grey Book employees. Two of the members of the NSC are also members off the HSSC. Thus, the recognised trade unions are formally involved in the health and safety process. The subcommittee meets quarterly and consists of the two trade union members, Ms Mohammed, and a note taker. ---4---

[11]Events leading to the dispute/ these proceedings. – The claimant it is a member of the GMB. On 26th of July 2021 Esther Compton, the GMB regional organiser, notified the respondent that the claimant had been duly elected as a GMB workplace organiser and health and safety representative. He was subsequently permitted paid time off by the respondent to undertake two weeks training as a workplace organiser in November and December 2021, and twelve days training spread over twelve weeks between January and the end of March 2022, to undertake level 1 health and safety training. Once he had completed the health and safety training, on 4th April 2022 he notified Stephen Quinlan (Head of Health and Safety) of the completion of the training and requested a number of documents relating to health and safety. In his reply, Mr Quinlan referred the claimant to the NSC saying that the request should be placed before it pursuant to the MDS and union agreements. The claimant replied asserting that the NSC was not involved, and that he was entitled to the information pursuant to regulation 7 off the SR and SC Regs 1977 (see below). Mr Quinlan replied that the company did not recognise the claimant as a safety representative for Morrisons Data Services, and did not supply the requested information.

[12]On 12th April 2022 the claimant and Mr. Davey wrote to Mr Matt Hardcastle (Director of Energy Data Collection) stating that their understanding was that the HSSC would only accept direct participation from employees in the companies Grey Book collective group. As a result, no non-Grey Book employee could be a member of the NSC / HSSC. They proposed that the health and safety forum be enlarged to include the representatives of non-Grey Book employees, or alternatively if that was not possible from the respondent’s perspective, to form a separate health and safety committee pursuant to regulation 9 of the regulations for non-Grey Book employees.

[13]Grievance/ Grievance Appeal - On the same day they raised a grievance to Mr Hardcastle in respect of Mr Quinlan's failure to follow SR and SC regulation 7, in the failure to provide at the information, and the failure to recognise the trade union health and safety representative.

[14]The grievance was heard by Sophie Hudspeth and was not upheld. In what the claimant describes as passing the buck, she informed him where he could find health and safety policies; referred him to the NSC in relation to viewing the accident book; and confirmed that as he was not an elected NSC representative that he could not sit on the HSSC.

[15]The claimant appealed, but his appeal was not successful, with the points above essentially being re-iterated.

[16]Background/Cause of the dispute - There is a dispute as to the background which led to this dispute arising in the first place, and to this claim being brought before the tribunal. In its opening submissions the respondent contended that the claimant was part of a cabal of former Meter-U employees who had brought a number of grievances against the respondent. In addition, he had been the subject of a disciplinary investigation and received a final written warning. The dispute, the grievances and the issuing of these proceedings are a form of retaliation for those ---5--- disciplinary proceedings and/or part of the campaign against the respondent exemplified by the earlier grievances. However, that proposition was advanced relatively faintly in cross-examination, and none of the respondent’s witnesses accepted holding this view themselves, or being aware of it, so there is no evidential basis for it before us.

[17]However, both the claimant and Mr Davey accepted that events in 2020 did precipitate and lead to this dispute. The background, at least as asserted by the claimant and Mr Davey, is that the NSC is dominated by Unison members, there being nine Unison representatives and only two GMB representatives, with the result that the Unison block could always outvote the GMB. Prior to December 2020 one of the GMB representatives on the NSC was also one of the two NSC representatives on the HSSC. However, he left the respondent’s employment and as a result ceased to be a member of both the NSC and the HSSC. He was replaced on the NSC by the Lead Representative of the GMB Mr Sean Doherty, but Mr Doherty did not put his name forward to replace him on the HSSC. The place of the former GMB representative was taken by Mr Danny Arnott, a Unison representative, with the result that both the NSC representatives on the HSSC were Unison representatives. The claimant and Mr. Davey have not sought to disguise the fact that they regard the Unison representatives with considerable suspicion, and do not trust them to adequately represent the concerns of GMB members generally on the HSSC, and in particular non-Grey Book GMB members. Mr Davey accepted in evidence that had the existing GMB representative remained in post, or had he been replaced by Mr Doherty, that it was at least possible that the events which led to this dispute and this litigation would not have occurred. When the EJ, perhaps naively, expressed the view that it was on the face of it surprising that the Unison and GMB representatives on the NSC were not apparently able to cooperate to represent the interests of non-Grey Book members, the suggestion was greeted with some mirth. It is however, an extremely unhappy feature of this case that on the claimant’s own evidence the whole dispute could have been avoided with a greater degree of co-operation between the trade union representatives. Whilst the claimant places the blame for this firmly at the door of the Unison representatives, we should point out and make clear that we have not heard any evidence from them, and are making no finding of fact that the claimant’s perception was correct, but simply that this is at least part of the reason, on the claimant’s evidence, that the dispute is before us at all.

[18]Arising from those facts the issues for us to determine are as set out below. List of Issues (As set out and agreed in the CMO of EJ Bax 4th January 2024) 1. Regulation 4(2) Safety Representatives and Safety Committees Regulations 1977 1.2 Was the Claimant appointed as a safety representative in accordance with Regulation 3? 1.3 Did the Respondent fail to permit the Claimant to take such time off with pay during his normal working hours as was necessary for performing his functions ---6--- under section 2(4) of the Health and Safety Act 1974 or in accordance with Regulation 4a) to h) and to undergo such training in aspects of those functions as may be reasonable in all the circumstances? 2. Section 146 TULR(C) Act 19922.1 Did the Respondent do the following things:2.1.1 Fail to recognise the Claimant as a safety representative;

2.1.2 Prevent the Claimant from discharging his functions under Regulations 4, 5(1) and 7 of the 1977 Regulations and s.2(6) of the Health and Safety Act 1974;

2.1.3 Fail to set up a committee in accordance with Regulation 9 of the 1977 Regulations;

2.1.4 Fail to acknowledge correspondence dated 12th April 2022;

2.1.5 Refuse to uphold the Claimant’s grievance;

2.1.6 Refuse to uphold the appeal to the grievance;

2.1.7 Refuse to allow the Claimant to access documents.

2.2 Did all or any of those things amount to a detriment?

2.3 Was the sole or main purpose of doing/ failing to do those things to :2.3.1 To deter him from being a member of the GMB in that the advantages or benefits of membership are diminished if he is unable to discharge his statutory functions? (s. 146(1)(a))

2.3.2 To prevent him from taking part in the activities of an independent trade union at an appropriate time? (s. 146(1)(b) & (2)) 3. Section 170 TULR(C) Act 1992

3.1 Did the Respondent fail to recognise the Claimant as a safety representative?

3.2 In so doing did the Respondent fail to allow the Claimant access to the documents that he requested?

3.3 Did the Respondent thereby prevent the Claimant from having time off for the purposes of taking part in activities of the union and/or activities in relation to which the Claimant was acting as a representative of the union? 4. Section 44 ERA 1996 Health and Safety Detriment

4.1 Did the Respondent do the following things:4.1.1 Fail to recognise the Claimant as a safety representative;

4.1.2 Prevent the Claimant from discharging his functions under Regulations 4, 5(1) and 7 of the 1977 Regulations and s.2(6) of the Health and Safety Act 1974; ---7---

4.1.3 Fail to set up a committee in accordance with Regulation 9 of the 1977 Regulations;

4.1.4 Fail to acknowledge correspondence dated 12th April 2022;

4.1.5 Refuse to uphold the Claimant’s grievance;

4.1.6 Refuse to uphold the appeal to the grievance;

4.1.7 Refuse to allow the Claimant to access documents.

4.2 By doing so, did it subject the Claimant to detriment?

4.3 If so, was it done on the ground that being a representative of workers on matters of health and safety at work or member of a safety committee in accordance with arrangements established under or virtue of any enactment the Claimant performed or proposed to perform any functions of such a representative or member of such a committee. (s. 44(1)(b)) 5. Remedy

5.1 What is the declaration to be made by the Tribunal?

5.2 What financial losses has the detrimental treatment caused the Claimant?

5.3 What injury to feelings has the detrimental treatment caused the Claimant and how much compensation should be awarded for that?

5.4 Is it just and equitable to award the Claimant other compensation?

5.5 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did either party unreasonably fail to comply with it? If so, is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%? Safety Representatives and Safety Committee Regulations 1977

[19]The starting point of the claims are the SR and SC Regulations 1977 (the relevant parts of which are set out below) Interpretation 2.-(1) In these Regulations, unless the context otherwise requires- "the 1974 Act" means the Health and Safety at Work etc. Act 1974 as amended by the 1975 Act; "the 1975 Act" means the Employment Protection Act 1975; "employee" has the meaning assigned by section 53(1) of the 1974 Act and "employer" shall be construed accordingly; ---8--- "recognised trade union" means an independent trade union as defined in section 30(1) of the Trade Union and Labour Relations Act 1974 which the employer concerned recognises for the purpose of negotiations relating to or connected with one or more of the matters specified in section 29(1) of that Act in relation to persons employed by him or as to which the Advisory, Conciliation and Arbitration Service has made a recommendation for recognition under the 1975 Act which is operative within the meaning of section 15 of that Act; "safety representative" means a person appointed under Regulation 3(1) of these Regulations to be a safety representative; "welfare at work" means those aspects of welfare at work which are the subject of health and safety regulations or of any of the existing statutory provisions within the meaning of section 53(1) of the 1974 Act; "workplace" in relation to a safety representative means any place or places where the group or groups of employees he is appointed to represent are likely to work or which they are likely to frequent in the course of their employment or incidentally to it. (2) The Interpretation Act 1889 shall apply to the interpretation of these Regulations as it applies to the interpretation of an Act of Parliament. (3) These Regulations shall not be construed as giving any person a right to inspect any place, article, substance or document which is the subject of restrictions on the grounds of national security unless he satisfies any test or requirement imposed on those grounds by or on behalf of the Crown. Appointment of safety representatives 3.-(1) For the purposes of section 2(4) of the 1974 Act, a recognised trade union may appoint safety representatives from amongst the employees in all cases where one or more employees are employed by an employer by whom it is recognised, ……. (2) Where the employer has been notified in writing by or on behalf of a trade union of the names of the persons appointed as safety representatives under this Regulation and the group or groups of employees they represent, each such safety representative shall have the functions set out in Regulation 4 below. Functions of safety representatives 4.-(1) In addition to his function under section 2(4) of the 1974 Act to represent the employees in consultations with the employer under section 2(6) of the 1974 Act (which requires every employer to consult safety representatives with a view to the making and maintenance of arrangements which will enable him and his employees to cooperate effectively in promoting and developing measures to ensure the health and safety at work of the employees and in checking the effectiveness of such measures), each safety representative shall have the following functions:- (a)to investigate potential hazards and dangerous occurrences at the workplace (whether or not they are drawn to his attention by the employees he represents) and to examine the causes of accidents at the workplace; ---9--- (b)to investigate complaints by any employee he represents relating to that employee's health, safety or welfare at work; (c)to make representations to the employer on matters arising out of sub-paragraphs (a) and (b) above; (d)to make representations to the employer on general matters affecting the health, safety or welfare at work of the employees at the workplace; (e)to carry out inspections in accordance with Regulations 5, 6 and 7 below; (f)to represent the employees he was appointed to represent in consultations at the workplace with inspectors of the Health and Safety Executive and of any other enforcing authority; (g)to receive information from inspectors in accordance with section 28(8) of the 1974 Act; and (h)to attend meetings of safety committees where he attends in his capacity as a safety representative in connection with any of the above functions; but, without prejudice to sections 7 and 8 of the 1974 Act, no function given to a safety representative by this paragraph shall be construed as imposing any duty on him. (2) An employer shall permit a safety representative to take such time off with pay during the employee's working hours as shall be necessary for the purposes of(a)performing his functions under section 2(4) of the 1974 Act and paragraph (1)(a) to (h) above; (b)undergoing such training in aspects of those functions as may be reasonable in all the circumstances having regard to any relevant provisions of a code of practice relating to time off for training approved for the time being by the Health and Safety Commission under section 16 of the 1974 Act. In this paragraph "with pay" means with pay in accordance with the Schedule to these Regulations. Inspection of documents and provision of information 7.-(1) Safety representatives shall for the performance of their functions under section 2(4) of the 1974 Act and under these Regulations, if they have given the employer reasonable notice, be entitled to inspect and take copies of any document relevant to the workplace or to the employees the safety representatives represent which the employer is required to keep by virtue of any relevant statutory provision within the meaning of section 53(1) of the 1974 Act except a document consisting of or relating to any health record of an identifiable individual. (2) An employer shall make available to safety representatives the information, within the employer's knowledge, necessary to enable them to fulfil their functions except(a)any information the disclosure of which would be against the interests of national security; or ---10--- (b)any information which he could not disclose without contravening a prohibition imposed by or under an enactment; or (c)any information relating specifically to an individual, unless he has consented to its being disclosed; or (d)any information the disclosure of which would, for reasons other than its effect on health, safety or welfare at work, cause substantial injury to the employer's undertaking or, where the information was supplied to him by some other person, to the undertaking of that other person; or (e)any information obtained by the employer for the purpose of bringing, prosecuting or defending any legal proceedings. (3) Paragraph (2) above does not require an employer to produce or allow inspection of any document or part of a document which is not related to health, safety or welfare. Safety committees 9.-(1) For the purposes of section 2(7) of the 1974 Act (which requires an employer in prescribed cases to establish a safety committee if requested to do so by safety representatives) the prescribed cases shall be any cases in which at least two safety representatives request the employer in writing to establish a safety committee. (2) Where an employer is requested to establish a safety committee in a case prescribed in paragraph (1) above, he shall establish it in accordance with the following provisions(a)he shall consult with the safety representatives who made the request and with the representatives of recognised trade unions whose members work in any workplace in respect of which he proposes that the committee should function; (b)the employer shall post a notice stating the composition of the committee and the workplace or workplaces to be covered by it in a place where it may be easily read by the employees; (c)the committee shall be established not later than three months after the request for it. Provisions as to industrial tribunals 11.-(1) A safety representative may, in accordance with the jurisdiction conferred on industrial tribunals by paragraph 16(2) of Schedule 1 to the Trade Union and Labour Relations Act 1974, present a complaint to an industrial tribunal that(a)the employer has failed to permit him to take time off in accordance with Regulation 4(2) of these Regulations; or (b)the employer has failed to pay him in accordance with Regulation 4(2) of and the Schedule to these Regulations. (2) An industrial tribunal shall not consider a complaint under paragraph (1) above unless it is presented within three months of the date when the failure occurred or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was ---11--- not reasonably practicable for the complaint to be presented within the period of three months. (3) Where an industrial tribunal finds a complaint under paragraph (1)(a) above wellfounded the tribunal shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the employee which shall be of such amount as the tribunal considers just and equitable in all the circumstances having regard to the employer's default in failing to permit time off to be taken by the employee and to any loss sustained by the employee which is attributable to the matters complained of. (4) Where on a complaint under paragraph (1)(b) above an industrial tribunal finds that the employer has failed to pay the employee the whole or part of the amount required to be paid under paragraph (1)(b), the tribunal shall order the employer to pay the employee the amount which it finds due to him. (5) Paragraph 16 of Schedule 1 to the Trade Union and Labour Relations Act 1974 (jurisdiction of industrial tribunals) shall be modified by adding the following sub- paragraph:- "(2) An industrial tribunal shall have jurisdiction to determine complaints relating to time off with pay for safety representatives appointed under regulations made under the Health and Safety at Work etc. Act 1974". First Claim

[20]The claimant’s first claim is brought pursuant to Reg 11(1)(a) that he was not allowed appropriate time off in accordance with Reg 4(2) and the issues are (as set out above): 1.2 Was the Claimant appointed as a safety representative in accordance with Regulation 3? 1.3 Did the Respondent fail to permit the Claimant to take such time off with pay during his normal working hours as was necessary for performing his functions under section 2(4) of the Health and Safety Act 1974 or in accordance with Regulation 4a) to h) and to undergo such training in aspects of those functions as may be reasonable in all the circumstances?

[21]The first issue is whether the claimant was in fact appointed as a safety representative within the meaning of Reg 3: - 3.-(1) For the purposes of section 2(4) of the 1974 Act, a recognised trade union may appoint safety representatives from amongst the employees in all cases where one or more employees are employed by an employer by whom it is recognised.

[22]Recognised Trade Union (Reg 3 (1) - That devolves into a number of separate questions; the first of which is whether the GMB was a recognised trade union. A recognised trade union is defined as: "recognised trade union" - an independent trade union as defined in section 30(1) of the Trade Union and Labour Relations Act ---12--- 1974 which the employer concerned recognises for the purpose of negotiations relating to or connected with one or more of the matters specified in section 29(1) of that Act in relation to persons employed by him…..”

[23]It is not necessary to set out the provisions of s29 (1) or 30(1) of the 1974 Act as it is not in dispute that those matters include the matters set out in clause 2.3 of the Collective Agreement (see above). The claimant contends that it follows automatically that the GMB is a recognised trade union.

[24]The respondent does not accept this. It contends that recognition agreements encompass many forms of agreement, and in particular may limit recognition to particular categories of worker. It would essentially be absurd if any trade union with recognition limited to particular categories of worker and/or particular bargaining group were able to assert a right to appoint health and safety representatives outside that group. Whilst the GMB is clearly in the broadest sense a recognised union, it is only recognised for the purpose of the representation of Grey Book employees; that is employees who have been directly recruited by the respondent on its standard terms and conditions after 1996 (see the second part of the definition contained within para 2.2 of the Collective agreement above), or those who have elected to transfer on Grey Book terms. As the claimant falls within neither category he is not part of the bargaining group in respect of which the GMB is recognised, and therefore the GMB is not in the case of the claimant recognised within the meaning of Reg 3. Secondly, the reference to “…all cases where one or more employees are employed by an employer by whom it is recognised” must mean and relate to employees falling within the bargaining group in respect of which it is recognised; and it would be an absurdity if it were otherwise.

[25]Although not specifically relied on by either party it is notable that s170 TULCRA (see below) provides that it applies to an “employee of his who is a member of an independent trade union recognised by the employer in respect of that description of employee to take time off during his working hours..” The respondent effectively submits that the SR and SC Regulations should be read as including a similar limitation.

[26]In respect of the first point the claimant submits that the limitation the respondent seeks to put on the ambit of Reg 3 is not found anywhere in regulations themselves, is not supported by any authority and is not therefore sustainable. If the trade union is a recognised trade union within the definition set out above, which it necessarily is, it automatically and inevitably falls within the ambit of Reg 3. In any event the respondent’s submission is factually incorrect. As set out at para 2.3(iv) of the agreement, representation relating to contractual terms and conditions is limited to representation of” eligible” employees. However 2.3(ii) health and safety, contains no such limitation and it must follow that the collective agreement does provide for the recognised trade unions to represent all relevant employee members in respect of health and safety matters; and that the right to do so is not limited to those employee members falling within the bargaining unit as defined in 2.3(iv). On any analysis, therefore, the claimant submits that the GMB was recognised within the meaning of Reg 3. ---13---

[27]Conclusion – In our judgment, had the limitation contained in s170 TULR(C)A also been contained in SR and SC Regulations then the respondent’s point would be a good one. However, it is not, and in our judgment the claimant is correct as to the meaning of recognition in the SR and SC regulations; and the GMB was a recognised union within the meaning of Reg 3(1).

[28]Notification (Reg 3(2)) – It is not in dispute that the notification contained in Esther Compton’s letter of 26th July 2021 is formal notification within the meaning of Reg 3(2).

[29]Functions of a Safety Representative (Reg 3 (2) and4) - Reg 3(2) provides that a safety representative has the functions set out in Reg 4, and in particular those set out in Reg 4(1) (a-h). Regulation 4 (2) (a) requires the respondent to allow the safety representative paid time off to fulfil those functions. The claimant’s claim is that the respondent has not done so.

[30]Time Off - There is a dispute as to whether the respondent has or has not failed to permit paid time off, and how that question should be approached.

[31]The respondent submits firstly, as is not in dispute, that between January and March 2022 the claimant was permitted paid time off for health and safety training; and that thereafter there is no record of him ever requesting time off to fulfil any health and safety function. The claimant’s evidence is vague in the extreme and he simply asserts that on “a few occasions” he asked his line manager Pete Ellison for time off to investigate incidents. There are no documentary records that any of these requests were ever made. The only one he specifically identifies relates to a road traffic accident which was reported to him and where he requested time off to inspect the scene of the accident. He made the request of his manager but heard nothing back. He accepts that this incident occurred after the proceedings were instituted and that no application to amend in respect of it has been made. The respondent therefore submits that there is, as a matter of fact, no evidence that time off has ever been refused.

[32]The claimant submits that this approach is too mechanistic. The starting point is that in his email of 29th March 2022 to Mr Quinlan he requested the company’s health and safety policies, all risk assessments relating to MDS, and the opportunity to review the companies accident book. In the first instance Mr Quinlan did not supply this information, but referred the claimant to the NSC, and Mr Wareham; and subsequently asserted that the respondent did not recognise him as a safety representative for MDS. It follows automatically, the claimant submits, that if the respondent would not supply the information requested, and would not recognise the claimant as a safety representative that it would not allow him time off to perform the Reg 4 functions. In essence that the refusal of time off should inferred from and is the natural consequence of the failure to recognise him; and that it is not necessary for the claimant to identify any specific refusal for the failure to allow the time off to be established. ---14---

[33]In respect of the email correspondence with Mr Quinlan relied on by the claimant the respondent submits that Mr Quinlan did not refuse to supply the documentation, but pointed the claimant to the NSC where he could request it. The claimant’s submission that this should be regarded as either a failure to allow time off in and of itself, or part of process to do so is not factually correct. The claimant never made any request to the NSC to receive the information, and never made any request for time off to read it. Whilst the claimant maybe aggrieved that Mr Quinlan asserted that he was not recognised, the claim relies on a failure to permit time off, and as a matter of fact none was ever requested or refused.

[34]Conclusions – In our judgment the claimant is correct in his analysis and a failure to recognise him automatically imply a failure to allow him time off to fulfil any necessary functions.

[35]“Necessary” Reg (4(2)) – The requirement to allow time off within Reg 4(2) is limited to time off that is necessary to fulfil the Reg 4 functions. Again the claimant submits that the Reg 4(1)(a-h) functions will all necessarily require time off to perform. If, as he asserts, the respondent wrongly failed to recognise the claimant as a safety representative it automatically follows that it would not permit time off for “necessary” activities.

[36]The respondent does not accept this. It relies in particular on the evidence of Ms Mohammed and the health and safety structure established within and under SHEQ. It asserts that there is no contention within the claimant’s evidence that there is in fact any systemic or significant flaw in what is a comprehensive scheme in respect of health and safety. The real dispute, at least as perceived by the claimant and Mr Davey, is between the GMB and Unison, or at least the claimant and Mr Davey’s view of the NSC and the Unison representatives on it. Essentially the position of the claimant and Mr Davey is that because the claimant was not eligible and/or permitted to sit on the NSC/HSSC, and as they did not trust the Unison representatives to adequately represent the views of non-Grey Book employees that they were entitled to require the respondent to set up an entirely new and separate health and safety committee for them; despite the fact that there were a number of mechanisms for raising health and safety issues as set out above. It is notable that this dispute has only arisen once there ceased to be a GMB representative on the HSSC; and that at no point prior to that has the GMB or any of its representatives contended that a complete new health and safety structure was required outside the NSC/HSSC The establishment of a new committee simply to satisfy the wishes of the claimant and Mr Davey was on any analysis not necessary; and would simply involve purposeless and unnecessary duplication.

[37]Conclusions – In our judgment this is the fundamental dispute in this case. Was it necessary to allow the claimant time off to fulfil the Reg 4 duties? That can in our judgment only be judged against the existing health and safety structure and in particular, given that this involves the question of a trade union representative’s role in health and safety matters, the role the respondent did or did not allow the trades unions to play. We accept the respondent’s evidence, which is not in any event in dispute, that it has a comprehensive health and safety system containing a number of ---15--- routes via which health and safety concerns can be raised; and in particular in the NSC/HSSC has formal trade union involvement in the process which includes the specific trade union of which the claimant is a member/representative. The question is whether in those circumstances it was “necessary” to establish a separate structure including a new health and safety committee outside the NSC/HSSC committee and to allow the claimant time off to participate in and fulfil health and safety duties, for the sole benefit of the claimant, or as he puts it non-Grey Book employees, simply because he did not trust the trade union representatives on the NSC/HSSC to adequately represent his and/or their interests. In our judgment the respondent is correct that there is no such obligation because it was self-evidently not necessary, particularly given the pre-existing formal involvement of the trades unions in the existing structure.

[38]It follows that the claimant’s claim pursuant to Reg 4(2) of the SR and SC Regulations must be dismissed. Second Set of Claims – Trade Union and Labour Relations (Consolidation) Act 1992

[39]There are two claims under s146 and 170 TULR(C)A 1992 and a linked claim under s44 ERA 1996 which are set out below: Action short of dismissal 146 Action short of dismissal on grounds related to union membership or activities(1) An employee has the right not to have action short of dismissal taken against him as an individual by his employer for the purpose of– (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so, (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so, or (c) compelling him to be or become a member of any trade union or of a particular trade union or of one of a number of particular trade unions.

(2) In subsection (1)(b) "an appropriate time" means– (a) a time outside the employee´s working hours, or (b) a time within his working hours at which, in accordance with arrangements agreed with or consent given by his employer, it is permissible for him to take part in the activities of a trade union; ---16--- and for this purpose "working hours", in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.

(3) An employee also has the right not to have action short of dismissal taken against him for the purpose of enforcing a requirement (whether or not imposed by his contract of employment or in writing) that, in the event of his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, he must make one or more payments.

(4) For the purposes of subsection (3) any deduction made by an employer from the remuneration payable to an employee in respect of his employment shall, if it is attributable to his not being a member of any trade union or of a particular trade union or of one of a number of particular trade unions, be treated as action short of dismissal taken against him for the purpose of enforcing a requirement of a kind mentioned in that subsection.

(5) An employee may present a complaint to an industrial tribunal on the ground that action has been taken against him by his employer in contravention of this section. 170 Time off for trade union activities (1) An employer shall permit an employee of his who is a member of an independent trade union recognised by the employer in respect of that description of employee to take time off during his working hours for the purpose of taking part in– (a) any activities of the union, and (b) any activities in relation to which the employee is acting as a representative of the union. (2) The right conferred by subsection (1) does not extend to activities which themselves consist of industrial action, whether or not in contemplation or furtherance of a trade dispute. (3) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS. (4) An employee may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this section. S44 ERA 1996 Health and safety cases. (1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that– ---17--- (a) having been designated by the employer to carry out activities in connection with preventing or reducing risks to health and safety at work, the employee carried out (or proposed to carry out) any such activities, (b) being a representative of workers on matters of health and safety at work or member of a safety committee– (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer, the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee, (c) being an employee at a place where– (i) there was no such representative or safety committee, or (ii) there was such a representative or safety committee but it was not reasonably practicable for the employee to raise the matter by those means, he brought to his employer´s attention, by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety, (d) in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work, or (e) in circumstances of danger which the employee reasonably believed to be serious and imminent, he took (or proposed to take) appropriate steps to protect himself or other persons from the danger. (2) For the purposes of subsection (1)(e) whether steps which an employee took (or proposed to take) were appropriate is to be judged by reference to all the circumstances including, in particular, his knowledge and the facilities and advice available to him at the time. (3) An employee is not to be regarded as having been subjected to any detriment on the ground specified in subsection (1)(e) if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he took (or proposed to take) that a reasonable employer might have treated him as the employer did. (4) Except where an employee is dismissed in circumstances in which, by virtue of section 197, Part X does not apply to the dismissal, this section does not apply where the detriment in question amounts to dismissal (within the meaning of that Part). ---18--- S146 / s170 / s44 – Overview

[40]Although they are dealt with separately below, as a general proposition in our judgement these claims stand or fall with the SR and SC Regs claims set out above. As set out in the issues to be determined the action short of dismissal is the failure to recognise the claimant as a health and safety representative and the consequential events; the failure to permit him time off under s170 is based on the failure to recognise him as a health and safety representative; and the detriments alleged under the s44 claim are identical to the alleged action short of dismissal in relation to s146. In effect the claimant submits that if his claims under the SR and SC Regs 19977 are well founded, it follows automatically that he was subjected to action short of dismissal and/or detriment and/or was not permitted time off to carry out his duties and the breaches alleged pursuant to those legislative provisions follow automatically. There is in fact no allegation of any separate action short of dismissal or detriment.

[41]Almost all the evidence and submissions relate to the SR and SC Regs, and although it is not conceded that all the claims stand or fall together, in our judgement it follows automatically that if there has not been a breach of the SR and SC Regs it is at least very hard to see how the respondent can be in breach of these legislative provisions.

[42]However for completeness sake we have dealt with the claims individually as set out below. S146 / s44 Action Short of Dismissal / Detriment

[43]The first point in dispute is whether the claimant was in fact subjected to any action as an individual short of dismissal/detriment.

[44]The claimant contends that, as set out in the List of Issues the actions short of dismissal and/or s44 detriments alleged are: 2..1.1 Fail to recognise the Claimant as a safety representative; 2.1.2 Prevent the Claimant from discharging his functions under Regulations 4, 5(1) and 7 of the 1977 Regulations and s.2(6) of the Health and Safety Act 1974; 2.1.3 Fail to set up a committee in accordance with Regulation 9 of the 1977 Regulations; 2.1.4 Fail to acknowledge correspondence dated 12th April 2022; 2.15 Refuse to uphold the Claimant’s grievance; 2.1.6 Refuse to uphold the appeal to the grievance; 2.1.7 Refuse to allow the Claimant to access documents. ---19---

[45]Taking each individually the respondent contends:2.1.1 –That it did not recognise the claimant as a safety representative because it was not obliged to under the regulations;

2.1.2 – It did not prevent the claimant from discharging his functions under the Regulations for the same reason- it was not obliged to accept him as exercising those functions;

2.1.3 – It did not fail to set up a committee in accordance with Regulations – There was already a committee set with in accordance with agreements with the his own trade union and it was not necessary (see above) to set up a separate committee; ;

2.1.4 This is factually incorrect. The correspondence was acknowledged; 2.1.5/6 The grievance and appeal were not upheld for the reasons given; 2.1.7 – The respondent did not deny the claimant access to my documents. He was informed that they were available from the NSC/HSSC

[46]Put simply, the respondent submits that even on the claimant’s case this is in essence the same claim as asserted in relation to the SR and SC Regs above. The actions short of dismissal, are the failure to recognise the claimant as, and permit him to perform the function of, a health and safety representative, and the failure to uphold his grievance in respect of the same. If those claims are not well founded under the SR and SC regulations they are not well founded pursuant to a146 and or s170 TULR(C)A either.

[47]S146 – The only part of s 146 which could be engaged is 146(1)(b) and if the claim pursuant to the SR and SC regs is not well founded the respondent contends that self- evidently the s146 claim cannot succeed. Specifically it cannot have been seeking to deter or penalise the claimant from pursuing the activities of the trade union at an “appropriate” time, as the concept of an “appropriate” time can only arise if the SR and SC Reg claim is well founded.

[48]S44 – The claims under s44 are bound fail simply because it is not alleged that the claimant was subjected to any detriment other than the failure to recognise him as a safety representative and the consequences that flowed automatically from that. If the respondent was entitled not to recognise him and/or permit him time off there is no detriment.

[49]Conclusions – In our judgement the respondent is correct in this analysis; and the claims must fail on this ground alone. However in the event that we are wrong about this we have gone on to consider the other elements of the claims. ---20---

[50]“Purpose” - The respondent denies that even if any of the actions above are properly categorised as action short of dismissal (s146 TULR(C) A) and/or detriment (s44 ERA) –were for the purpose of: (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so, (b) preventing or deterring him from taking part in the activities of an independent trade union at an appropriate time, or penalising him for doing so

[51]The claimant submits that it is inevitable the failure to recognise him as a health and safety representative within the SR and SC Regs will prevent him from taking part in the activities of an independent trade union at an appropriate time (s146 (b)) and that necessarily the purpose must be to prevent him from doing so.

[52]The respondent contends that neither was its sole or main purpose. Its sole or main purpose was not to duplicate or complicate health and safety access that already existed, in circumstances in which it considered that what was being suggested by the claimant was wholly unnecessary. It was not designed to, and did not have the effect of deterring him from participation in the membership or activities of the trade union, and self-evidently did not penalise him for doing so.

[53]Conclusions – We accept the respondent’s evidence and submissions, and find that the sole or main purpose of its actions was not to achieve any of the proscribed results.

[54]S170 Time Off – Essentially the same points arise. The claimant asserts that if his claim under the SR and SC Regs is a good one the respondent is automatically in breach of this provision; and the respondent that if it is not in breach of the SR and SC Regs then it cannot be in breach of this provision.

[55]As set out above this claim is one which in our judgement automatically stands or falls with our conclusions as to the claim under the SR and SC Regs; and as we have dismissed that claim this is also bound to be dismissed. Judgment entered into Register _______________________ And copies sent to the parties on 27th March 2025