Ms L Basiony and others v Mitie Care and Custody and Mitie Ltd: 2303791/2019 and others
EMPLOYMENT TRIBUNALS
Case No 2303791/2019
Between
Ms L Basiony (1) Ms H Jacob (2) Ms K Pearce (3) Ms B Crabbe (4)ClaimantMitie Care and Custody (1) Mitie Limited (2)Respondent
Before
Employment Judge SelfDate 11 February 2022
JUDGMENT
[1]The First Claimant’s claims of harassment on the grounds of sex and victimisation against the First Respondent are dismissed upon withdrawal.[2]The Claimants’ application to amend their respective claims so as to add a claim pursuant to section 45A of the Employment Rights Act 1996 (ERA) is granted.[3]The section 44 ERA detriment claim is not well founded and is dismissed.[4]The section 45A ERA detriment claim is not well founded and is dismissed.[5]The Claimants do not work in an excluded sector as defined by Regulation 18 of the Working Time Regulations 1998.[6]The Respondent has not failed in their Regulation 24 obligation to allow the Claimants to take an equivalent period of compensatory rest and that Claim is rejected.
REASONS
[1]The Claimants lodged claims with the Tribunal in September 2019 asserting that they had been subjected to acts of sex discrimination (direct and / or harassment), detriments on account of raising Health and Safety issues and breach of the Working Time Regulations 1998 (WTR). In addition, the First Claimant, Ms Basiony, asserted that she had been victimised.[2]Dates of each respective Claimant’s Early Conciliation and lodging of the Claim Form is as follows: a) Ms Basiony – ACAS EC 9 July 2019 to 9 August 2019. Claim lodged 9 September 2019; b) Ms Crabbe – ACAS EC 5 September 2019 to 5 September 2019. Claim lodged 9 September 2019; c) Ms Jacob – ACAS EC 19 August 2019 to 5 September 2019. Claim lodged 26 September 2019; d) Ms Pearce – As per Ms Jacob.[3]The Respondents lodged a Response in which they accepted that Ms Basiony, Ms Crabbe and Ms Pearce were employees of Mitie Care and Custody Limited and that Ms Jacob was employed by Mitie Limited. All claims were denied.[4]The Claims came before EJ Hargrove on 18 March 2020. The allegations of breach of WTR and Health and Safety Detriment were maintained but all direct sex discrimination claims were withdrawn, and the harassment and the victimisation claims were withdrawn by all Claimants save for Ms Basiony. Those Equality Act claims were pursued to this hearing but were withdrawn either, just before the hearing (harassment), or during the course of the evidence being given (victimisation). For the avoidance of doubt there are no Equality Act claims remaining for adjudication as they have all been dismissed upon withdrawal.[5]Directions were given at the Preliminary Hearing listing this matter for four days. Unfortunately, resources were only available for a three-day listing and by the end of those three days all of the evidence had been heard. There were discussions about how matters should proceed, and it was clear due to the availability of key personnel the most prudent course was for closing submissions to be submitted by the parties in writing and then for a further right of reply to those submissions to be given. The parties consented to that course. The Tribunal would then meet again for their deliberations and a reserved Judgment sent out. Due to commitments across the Tribunal there was a delay in the Tribunal meeting again and a further delay in writing up the product of those discussions. During that writing up process it was considered desirable for the Tribunal to meet again to discuss certain aspects of the Claims further. This has caused further delay but was deemed essential.[6]Application to Amend Claim On 27 August 2021 the Claimant made a written application to amend their claim so as to add a claim pursuant to section 45A Employment Rights Act (ERA) (Working Time Detriment). The application indicated that the detriments relied upon would be the same as relied upon under the section 44 ERA Health and Safety Claims and that such a claim had been mooted as far back as the disciplinary hearings at the end of October 2019 (640).[7]The application averred that the balance of prejudice favoured allowing the amendment notwithstanding the lateness of it. The application was opposed by the Respondent on the grounds that they would be prejudiced by the late amendment, that the application had been made too late and that there would not be enough time to hear the case if the application were permitted.[8]The application was heard prior to any evidence being given. The correct approach to adopt when considering an application to amend was recently considered and outlined by His Honour Judge Tayler in the EAT in the case of Vaughan v Modality Partnership Limited (2020) UK EAT 0147/20. Within that case the following messages were communicated, the first being that the Tribunal has a broad discretion when considering applications to amend.[9]The key test for considering amendments has its origin in the decision of Cocking v Sandhurst (Stationers) Ltd [1974] ICR 650 at 657BC: “In deciding whether or not to exercise their discretion to allow an amendment, the tribunal should in every case have regard to all the circumstances of the case. In particular they should consider any injustice or hardship which may be caused to any of the parties, including those proposed to be added, if the proposed amendment were allowed or, as the case may be, refused.”[10]In Selkent Bus Co Limited v Moore (1996) ICR 836 at 843D it was said “Whenever the discretion to grant an amendment is invoked, the tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it.”[11]In Transport and General Workers Union v Safeway Stores Ltd UKEAT/0092/07 (6 June 2007), Underhill P concluded that on a correct reading of Selkent the fact that an amendment would introduce a claim that was out of time was not decisive against allowing the amendment, but was a factor to be taken into account in the balancing exercise.[12]The list that Mummery J gave in Selkent as examples of factors that may be relevant to an application to amend (“the Selkent factors”) should not be taken as a checklist to be ticked off to determine the application, but are factors to take into account in conducting the fundamental exercise of balancing the injustice or hardship of allowing or refusing the amendment.[13]The factors identified in Selkent should be used to identify matters that pertain to the vital issues on the balance of hardship and injustice.[14]In Abercrombie v Aga Rangemaster Limited (2014) ICR 209 Underhill LJ stated this important consideration, at paragraph 48: “Consistently with that way of putting it, the approach of both the Employment Appeal Tribunal and this court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and by the old, the less likely it is that it will be permitted.”[15]Underhill LJ focused on the practical consequences of allowing an amendment. Such a practical approach should underlie the entire balancing exercise and one needs to start by considering, possibly putting the Selkent factors aside for a moment, what the real practical consequences of allowing or refusing the amendment are. If the application to amend is refused how severe will the consequences be, in terms of the prospects of success of the claim or defence? If permitted what will be the practical problems in responding. This requires a focus on reality rather than assumptions.[16]Refusal of an amendment will self-evidently always cause some perceived prejudice to the person applying to amend. They will have been refused permission to do something that they wanted to do, presumably for what they thought was a good reason. Submissions in favour of an application to amend should not rely only on the fact that a refusal will mean that the applying party does not get what they want; the real question is will they be prevented from getting what they need. This requires an explanation of why the amendment is of practical importance because, for example, it is necessary to advance an important part of a claim or defence.[17]Similarly, the prejudice to a Respondent will be that they have to respond to an additional claim that otherwise they would not have to meet. That will be the same for any amendment application so one has to look at prejudice over and above the base prejudice on both sides.[18]The Selkent factors are still relevant and they are:• the nature of the amendment.• the applicability of time limits.• the timing and manner of the application. The examples were given to assist in conducting the fundamental balancing exercise. They are not the only factors that may be relevant.[19]The Selkent factors must also be considered in the context of the balance of justice. For example• A minor amendment may correct an error that could cause a claimant great prejudice if the amendment were refused because a vital component of a claim would be missing.• An amendment may result in the respondent suffering prejudice because they have to face a cause of action that would have been dismissed as out of time had it been brought as a new claim.• A late amendment may cause prejudice to the respondent because it is more difficult to respond to and results in unnecessary wasted costs.[20]No one factor is likely to be decisive and the balance of justice is always key.[21]Where the prejudice of allowing an amendment is additional expense, consideration should generally be given as to whether the prejudice can be ameliorated by an award of costs, provided that the other party will be able to meet it.[22]An amendment that would have been avoided had more care been taken when the claim or response was pleaded is an annoyance, unnecessarily taking up limited tribunal time and resulting in additional cost; but while maintenance of discipline in tribunal proceedings and avoiding unnecessary expense are relevant considerations, the key factor remains the balance of justice.[23]The requested amendment in this case is for an additional detriment claim to be added pursuant to section 45A (1) (a) and (b) of the Employment Rights Act 1996 which reads, so far as is relevant, as follows: 45A (1) A worker 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 the worker— (a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998, (b ) refused (or proposed to refuse) to forgo a right conferred on him by those Regulations….[24]In fact, the amendment has ended up being with the same detriments as the claim that had been brought under Section 44 of the Employment Rights Act 1996 which prohibits detriment on certain health and safety grounds. Save for the change in the cause of the detrimental treatment alleged, the claims are identical. Indeed, the Respondent admits that the alleged detriment treatment (being subjected to an investigation and disciplinary proceedings and being issued disciplinary warnings) took place.[25]Whilst the claim is under a different statutory provision it is largely a reutterance of the same factual nexus with a different triggering act. It does not appear that the Respondent would be prejudiced by the new claim over and above that which all Respondents would, in that there is an additional claim against them. The suggestion was that we would not finish if this extra claim was added. In fact, the original listing was for four days but the trial was only listed for three days. We did not consider that the addition of this claim would have such a bearing on the timings that the amendment should be rejected. Any additional evidence / submissions would be minimal if the amendment application were permitted.[26]We can see no reason why the Respondent would not be able to set out a clear and cogent defence to this head of claim, notwithstanding its late appearance and it is not as if the passage of time will have led to any evidential deficiencies in their case. It would appear that to a very large extent there will be little contested evidence on these issues as much is agreed in terms of the detriments. Whilst it is regrettable that a claim, that was foreshadowed at the time of the alleged acts, was not included in the Claim and also regrettable that time needs to be taken up on the matter at this hearing we consider that the balance of hardship in this case if the amendment were not granted would fall against the Claimant and so we permit the amendment. We have weighed in the balance the Selkent factors in coming to this conclusion.
List of Issues
[27]At the outset of the Claim the parties produced an Agreed List of Issues. That document underwent a number of manifestations throughout the course of the hearing as the claim was amended and as various claims were withdrawn. Upon close of the evidence the Issues to be determined were as follows: The Working Time Regulations 1998 ("WTR") 1. The questions that follow relate solely to the flight of 7 June 2019. They cannot relate to events more than 3 months prior to the presentations of the claim (having taken into account the EC process). 2. Did the Respondent breach the WTR by a failing to provide compensatory rest under Regulation 24. 3. Do the provisions of the WTR apply to the Claimants in their roles as overseas escorts or are they excluded under Regulation 18 (2)(a) namely as being “where characteristics peculiar to certain services such as the armed forces or the police, or to certain specific activities in the civil protection services, inevitably conflict with the provision of these Regulations”? 4. Do the Claimants fall within the definition of the “civil protection services” provided by Regulation 2 as including the police, fire brigades and ambulance services, the security and intelligence services, customs and immigration officers, the prison service, the coastguard, and lifeboat crew and other voluntary rescue services” 5. In the event that the WTR are not excluded by virtue of Reg 18 It is common ground that Regulation 24 is engaged as a result of the application of Regulation 21 although the parties differ on whether all sub sections apply. 6. Was it possible for the employer to allow the employee to take an equivalent period of compensatory rest? 7. If so, was the Respondent in breach of that obligation? 8. Was this an exceptional case in which it was not possible, for objective reasons, to grant such a period of rest Regulations 24 (b)? 9. If it is held that there were, in fact, “entirely exceptional” circumstances permitting the Respondent not to afford proper compensatory rest and instead rely on the provision of “appropriate protection” under Regulation 24(b), then:a. What protection measures were provided?b. Were those measures (if any) appropriate in all the circumstances to safeguard the Claimants’ health and safety?c. If no measures were in fact provided, can the Respondent rely on the defence in paragraph 32 of their Grounds of Resistance that they “would have been afforded appropriate protection”? Health and Safety Detriment 10. Were the Claimants at a place where there was no health and safety representative or committee or, if there was, it was not reasonably practicable to raise concerns with that representative or committee? 11. If so, did they bring to the Respondent’s attention, by reasonable means, circumstances connected with their work which they reasonably believed were harmful or potentially harmful to health or safety? 12. It is accepted that the Claimants were subjected to the following detriments:- a. Being subjected to investigation b. Being subjected to disciplinary proceedings c. Being issued by disciplinary warnings 13. It is not accepted that the Claimants have been subjected to the following detriment:- being prevented from participating in assignments for which they could earn overtime or responsibility allowances whilst they were engaged in meetings with the Respondent. 14. Have the Claimants been subjected to a detriment on the grounds identified in s44(c) ERA 1996? Working Time Detriment 15. Did the Claimants on 7/8th June 2019 refuse to comply with a requirement which the Respondents imposed in contravention of the Working Time Regulations (namely the requirement to continue working without the provision of compensatory rest in breach of s24 Working Time Regulations 1998) 16. Did the Claimants on 7/8th June 2019 refuse (or proposed to refuse) to forgo a right conferred on them by the Regulations (namely the entitlement to compensatory rest under s24 Working Time Regulations 1998). 17. It is accepted that the Claimants were subjected to the following detriments:- a. Being subjected to investigation b. Being subjected to disciplinary proceedings c. Being issued by disciplinary warnings 18. It is not accepted that the Claimants have been subjected to the following detriment:- being prevented from participating in assignments for which they could earn overtime or responsibility allowances whilst they were engaged in meetings with the Respondent. 19. Were the Claimants subjected to detriments on the grounds identified in s45A(1)(a) and/or(b) ERA 1996?[28]At the outset of this hearing and within the bundle there was a Statement of Agreed Facts which was produced and agreed by the parties on the basis that the facts were agreed to be accurate and that neither party will need to call evidence to prove any of the facts set out therein. Again, we are grateful for this assistance from the parties.[29]In this Judgment between paragraphs 32 and 138 the Agreed Facts are identified in Bold Italic Text and have been set out in full. Text, which is in normal type, are those added by the Tribunal for further context or elucidation on those that have already been agreed.[30]We heard oral evidence from each of the Claimants and carefully considered the witness statements each had submitted. For the Respondent we heard oral evidence from Mr Ross and Mr Morrison who were both cross examined and also considered their statements and those of Mr Blackford and Mr Taylor -Dayus whom the Claimant’s barrister elected not to ask questions of.[31]Closing submissions could not be concluded within the foreshortened time allocated to the case and so we gave the parties time to present their closing submissions in writing and also a chance to respond to each other’s submissions. Whilst not ideal it was agreed that was the best course of action and then the Tribunal met in Chambers to discuss the Claim at the end of October and again in February 2022.
The Facts
[32]The Respondents are private sector Limited companies. The First Respondent operates justice and custodial services, including escorting detainees on behalf of the UK Government (Home Office), whose deportation has been ordered by the UK Courts (Escorting Services Contract) overseas.[33]The employment of the First, Third and Fourth Claimants transferred to the First Respondent on 1 May 2018. The Second Claimant was employed directly by the Second Respondent at a later date. At the material times the Claimants worked under the Escorting Services Contract.[34]The Respondents are not a state employer and not an emanation of the state.[35]Linda Basiony (the First Claimant) and Kirstie Pearce (the Third Claimant) were both employed by the First Respondent as Detainee Custody Officers (DCO). Holly Jacob (the Second Claimant) was employed by the Second Respondent in the same role.[36]Beverley Crabbe (the Fourth Claimant) was engaged by the First Respondent as a Senior Detainee Custody Officer (SDCO).[37]The role of DCO and SDCO (together, “Custody Officers”) involved (among other things) escorting detainees from the UK to overseas countries.[38]In the DCO Job Description (193.1) the main Duties are described as follows (so far as are relevant to this claim): a) Maintaining restrictions on detainees’ liberty whilst promoting and protecting their rights in compliance with legislation and company policy and procedures; b) Maintain high standards of security and safety at all times promoting an environment of positive behaviour that supports the welfare of detainees and staff; c) Search individuals as necessary seizing and storing forbidden items so that safety and security is maintained; d) Accompanying detainees on transfers within the UK to airports and then on scheduled flights to a designated a country; e) Driving detainees and colleagues between sites and airports / aircraft; f) Receive and release individuals and property in line with company procedures to prevent incorrect release / stroke detention of detainees or a lost / misdirection of property; g) Liaison with staff working at other sites, immigration officials, airport personnel and overseas authorities; h) Deal with vulnerable and difficult detainees in a calm and professional manner to reduce risk and ensure safe and secure environment is maintained at all times; i) Participate in the control of incidents and emergencies to ensure their swift resolution; j) Complete all documentation and administration in line with company policy these so that accurate contractually compliant data is maintained; k) Communicate information to and about detainees engendering positive and professional relationship with all detainees whilst maintaining the security and safety of the operation.[39]The SDCO job description was also requested but what was produced was an advertisement from Tascor as to a vacancy in the SDCO role.[40]The First Claimant has been employed by the First Respondent, and its predecessor employers, since November 2008.[41]The Second Claimant has been employed by the Second Respondent since 29 October 2018.[42]The Third Claimant has been employed by the First Respondent, and its predecessor employers, since 6 February 2015.[43]The Fourth Claimant has been employed by the First Respondent, and its predecessor employers, since 6 January 2006.[44]The First Respondent took over the Escorting Services Contract with effect from 1 May 2018 from the previous service provider, Tascor Services Limited ('Tascor').[45]The First Respondent is required by the Home Office and the Home Office's travel services provider ("CWT") to follow the rules set out in a Banding Policy. The Policy has not changed substantively from when Tascor previously provided the services described above.[46]The First Respondent's rest stop/stop over policy (Policy) dated 15 October 2018 (pages 246-249) follows the Banding Policy and outlines circumstances in which a rest stop is granted, planned, or not envisaged. It provides that, where a detainee is being removed, where applicable, provision will be made for a rest stop once the detainee is handed over to the receiving authorities. It stipulates that some removals can be 'straight returns' with no rest stop. Whether or not a rest stop is applied to a job of under 36 hours at the planning stage is determined by factors such as the complexity of the case, behavioural risk, record and background of the detainee at issue, the carrier, flight availability, and flight times.[47]The CWT is responsible for determining the band (between A to D) within which the removal falls.[48]The current arrangement with CWT provides the calculation based on the flight time, transit time plus turnaround time from departure to return plus 13 hours (a default period for muster and demuster activities prior to and following the flights). Rest stops are not factored into Band B removals. Calculations are based on 'straight turnarounds'.[49]Once a detainee has been handed over to the relevant authority at the receiving country Custody Officers are required to board their return flight at its designated time. They are at liberty to utilise this time as they see fit (use washrooms, have a meal, rest in airport facilities etc). However, their conduct remains governed by the Mitie One Code at all times (as they are representing the Respondent whilst still on paid duties) and they are prohibited from consuming alcohol. Custody Officers on the return flight may sleep or otherwise engage in such activities as are available to them on the flight. Custody Officers have no formal supervision duties on the return flight.[50]If the assignment includes rest down route, Custody Officers are expected to comply with the Mitie One Code at all times. They must not consume alcohol but otherwise may use the time as they see fit. Custody Officers are required to be ready to depart for their return flight.[51]After every escort, the SDCO is required to complete a one-page high level report (end of job sheet). In addition, if any force was used during the outbound escort, use of force paperwork must be completed supported by a General Incident Report. These documents are not lengthy in nature and may be completed during the return flight, or upon arrival at the end destination Spectrum House. This is entirely at the discretion of the Custody Officers.[52]It would appear that the Working Time issues in this case have been a bone of contention between the Community Trade Union, on behalf of its Members, and the Respondent and its predecessors for some time. There was a meeting between Tascor, the Home Office, the Trade Union and the Health and Safety Executive on 21 November 2016 and the HSE set out its conclusions from that meeting in a letter dated 20 March 2017.[53]The concerns identified centred on the rest breaks and work patterns of DCOs in their escorting work. It expressed a view that the WTR would apply to DCOs employed by Tascor from a jurisdictional perspective. The HSE outlined the extent of their statutory jurisdiction under the WTR and concluded that it was not in a position to consider matters relating to Regulation 21 and/or 24 of the WTR as that was a matter to which the Employment Tribunal had jurisdiction. In particular the extent to which the Overseas Escort Rest Stop Policy was governed by the WTR was a matter for the Employment Tribunal. The HSE announced that they had formally closed their investigation into this matter. It is clear that the HSE did not resolve the questions that the Trade Union sought answers to.[54]We have seen correspondence from Mr Farrell of the Community Union to the Respondent in April 2018 (260-261) where he raises issues about WTR expressing his dissatisfaction with the working practice and indicated that the Union were to seek an advice from a QC on the matter. There is an email from a Mr Snell of the Home Office to Mr Morrison of the Respondent on 9 May 2018 just after the Respondent had taken over the contract from Tascor. He sets out the policy which had been available at tender and states that it had been in place since 2008 and was in purported compliance with an enforcement notice from the HSE.[55]The Home Office asserted that it had legal advice as to the legality of the Policy which supported it. Mr Snell stated: “…that whilst the WTRs apply to DCO, the need to provide rest in strict compliance with the WTRs (as requested by the Union) is not correct as the duties of a DCO would likely be exempted under regulation 21(a) due to the distance between the home and the location of the work activity. Regulation 21 covers special cases where strict application of the WTR is not required but compensatory rest should be provided where practicable (Regulation 24). The current rest policy complies with providing compensatory rest where practicable and has been in operation since 2008. Under the WTR’s compensatory rest does not legally have to be paid, thus unpaid rest can be provided . Given the fact that rest in the current policy is paid we feel we have exceeded any obligation in regard to the WTRs.”[56]On 15 January 2019 the Community Union wrote to Mr Spencer about: “Concern on behalf of its members working for the respondent regarding various health, safety, well-being and associated matters affecting overseas escort's. The union has taken Queen's Counsel’s advice on these matters and this letter was written with a view to achieving a timely agreed resolution of the matters which we set out below but also to put you on notice that this does not prove possible of our intention to bring legal proceedings.[57]The letter goes on to state under the heading of Working Time Regulations 1998: “It is our belief that the work of overseas escorts is unlikely to be wholly excluded from the scope of the core provisions of the Working Time Regulations 1998 . It is our position that pursuant to Regulation 21 the work of overseas escorts is exempted from the right to an 11-hour rest break within every 24-hour period when work is carried out but only for periods when they are actually accompanying detainees (sic) . Outside of these periods the Respondents are obliged to give effect to the right to such rest periods under Regulation 10 or insofar as that is not possible to compensatory rest under Regulation 24. It is our position that the Respondents refusal to afford periods of rest between the outbound and return flights on assignments of less than 36 hours is probably in breach of Regulation 10 and / or Regulation 24. Further even where rest periods are provided on assignments of more than 36 hours the practise of treating the rest period as starting on “wheels down” is likely to constitute a further breach of Regulation 10 and / or Regulation 24. Additionally, in many cases the hotel arrangements do not allow for genuine rest and that too is likely constitute a breach of the of the Working Time Regulations. It is our respectful submission that the rest period should be treated as starting when the worker completes entry through border control and finishing when he or she is required to check in for the return flight. We say that in respect of the hotel arrangements that the Respondent must provide for a hotel that is reasonably accessible from the airport and which allows for genuine rest in a room that is available throughout the whole rest period.[58]In the same letter under the heading Duty of Care Mr Axtell, the National Officer of the Community Union wrote: “The Respondent’s duty of care to overseas escorts requires it to take such steps as are reasonable in the circumstances to minimise the risk to their health and safety arising from the organisation of their hours and patterns of work. This duty applies to the general risk to the workforce as a whole and in respect of any additional individual risk factors which the respondent is or ought to be aware of. Your predecessor, Tascor, issued a memorandum on the 9th of February 2018 addressing overseas escorts insisting on what we believe to be their rights under the Working Time Regulations which concluded, “Under no circumstances will later flights be authorised by anybody requesting extra downtime because of this issue and anyone refusing to return to the United Kingdom on their assigned flights will be subject to disciplinary action”. For the avoidance of doubt, we believe that any instruction to comply with a pattern of work which breaches that duty is not a lawful instruction and overseas escorts are not obliged to comply with it. Consequently, we ask that the 9th of February 2018 memorandum be withdrawn forthwith.”[59]From this correspondence we conclude that by the early part of 2019: a) The issue about compliance with WTR had been rumbling on for some time without resolution; b) Both parties had set out their positions and there was little room for compromise within them; c) The Trade Union had asserted that they had legal advice supporting their position and that if matters could not be resolved then they would institute legal proceedings.[60]We are satisfied that from the early part of 2019 the Trade Union were looking to find a set of circumstances which may be a suitable vehicle to bring a claim against the Respondents with a view to gaining a Judgment in their favour which they could then utilise to support change to the position that they believed that they were legally entitled to. The identity of the individual Claimants was not a matter that was of any real import but what was required was a suitable deportation which could be used to test out the advice which they had received.[61]We find that the trip chosen for this specific purpose was the deportation that has been the subject of this litigation which was one that was at the very cusp time-wise to the 36 hour cut off where a stop-over would not be afforded after the deportee had been received by the overseas authorities.[62]We are satisfied that the Claimants in this case knew that their trip was marked out by the Trade Union as being a “test case” and that they fully understood their role within the situation and what was required of them. We find that they deliberately set out to test the boundaries of what was legal and that it was this that drove their actions as opposed to anything specific that took place on the trip itself.[63]Ms Basiony was well placed to judge matters on this trip as she was the most senior Trade Union official representing overseas escorts. The Claimant’s demeanour was often hostile to questioning from the Respondent’s counsel and it is quite clear that she is heavily invested in the issues that arise in this case.[64]Around mid-April a request was made by the Home Office to the Respondent to return one female to Saudi Arabia.[65]On 19 April 2019 an Overseas Risk Assessment Form was completed (864.1). It was assessed as not being a complex or high-profile removal but recorded that there had been a previous failed escorted removal because of violent / disruptive behaviour and that there was a lengthy transit involved in the detainee’s return. On that basis a four-person crew was required as opposed to a three-person crew and it appear from the form that that would have been the case even if only one of the criteria identified was in situ. The Claimants to this case were assigned. A medic was also assigned.[66]On or around 0800 hours on 7 June 2019 the Claimants (together with a male medic) mustered at the Respondent's premises at Spectrum House, Crawley (next to Gatwick Airport) for a briefing on the removal of a female national of Saudi Arabia (Detainee) from Yarl's Wood Immigration Removal Centre in Bedford to Damman, Saudi Arabia via Amman, Jordan.[67]Ms Crabbe raised with her manager at 0800 and before the job had even started the fact that she believed that because of the temporal length of the removal that she believed that there should be some downtime built in. She was told that no downtime was needed because of the length of the job but it could be reviewed if it became more complex (393). We find this is consistent with our finding that this job had been ear marked for testing out the policy in terms of its length. We are satisfied as will become clear later in this Judgment that incidents that took place on the trip were exaggerated in order to try and get the stopover in Amman.[68]Four Custody Officers were assigned to the removal. At the briefing the Claimants discussed the details of the removal namely: the identity of the Detainee; the risk assessment; the timings of the flights and the roles of those involved. The assigned flight route was as follows (292): 1705 Leave Heathrow for Amman, Jordan 0010 Arrive Amman 0115 Leave Amman for Dammam, Saudi Arabia 0330 Arrive Dammam 0615 Leave Damman for Amman 0830 Arrive Amman 1200 Leave Amman for Heathrow 1525 Arrive Heathrow.[69]CWT scheduled the removal based on the time the flight departed from the UK to the return flight back to the UK, plus 13 hours (allowing for muster and de-muster activity). The flight times were scheduled to take 21 hours and 55 minutes which. 13 hours were added for muster and de-muster taking the total job time to 34 hours and 55 minutes. This meant the removal fell within Band B of the Policy (page 247). Accordingly, no rest stop or stop over was allocated to the job at the planning stage in accordance with the policy. It is clear that this particular removal only just fell within Band B and as a consequence was a good opportunity for the Trade Union to test out the policy on an actual deportation with a view to bringing legal proceedings thereafter.[70]There is an escalation process once the removal has commenced. Where a removal increases in complexity or difficulty, a period of rest (in addition to in-work rests) may be granted on a case by case basis and upon request by the lead Custody Officer. If a rest stop is authorised, the flight times will be changed to ensure a rest stop is included. Such rest time will be for a minimum period of 11 hours from 'wheels down' to 'wheels up'.[71]It is clear that representations could be made back to the Respondents which would then be passed onto the Home Office for approval. Complexity or difficulty could flow from the actions of the deportee or it is presumed a number of other factors. Whilst it is characterised in the agreed facts as “rest” such a stopover would not necessarily amount to compensatory rest as defined by the WTR. A stopover would not even need to be rest in the sense of recuperation. The Claimant could use the “rest” in order to do any activity they wish. We deal with this further in our conclusions below.[72]The Claimants were driven north from Spectrum House to Yarl's Wood Immigration Removal Centre, a journey of approximately 2 and a half hours. The Claimants stopped on the way at Morrisons (1020-1056) for 36 minutes to get some food and coffee (page 358). It is accepted by all that this was a rest break.[73]The Claimants assumed custody of the Detainee at Yarl's Wood at 1130 on 7 June 2019. The Claimants and the Detainee left Yarl's Wood at 1150 on 7 June 2019.[74]Upon arrival at the airport the Detainee advised the Claimants that she would not walk on to the aircraft and she was informed that reasonable, proportionate and necessary force would be used to get her on to the aircraft. The Tribunal do not consider that the actions of the Claimant in this regard would be anything particularly out of the ordinary and would be well within what could be properly anticipated on any deportation.[75]A decision was made to place the Detainee in a waist restraint belt at 1520. Again, there was no suggestion that this precaution was anything out of the ordinary.[76]On or around 1530 on 7 June 2019 the Fourth Claimant telephoned Jason Pitt, Detainee Custody Office Manager (DCOM) with the Respondent to request a rest period during the removal. Mr Pitt advised the Fourth Claimant that he would escalate the request in accordance with the Policy. We note that when this request was made there was nothing that had taken place that this would be a complex or difficult removal that would necessitate the exceptional circumstances to take the deportation outside of the norm. There had been an uneventful trip to collect the deportee. The Claimant indicated in their evidence that the deportee was tearful but it is difficult to see that that is a rare circumstance in deportations nor the fact that she was wishing to speak with her solicitor and had indicated that there may be future disobedience in not walking to the plane. We consider that whilst the Claimants’ job is by no means an easy one (or has the potential to not be easy) that has already been factored into the rest policy. In summary we consider that this early request for a stop over is consistent with the finding we made earlier that whatever happened on the journey a request was going to be made for a stopover using whatever might be available.[77]At 1600 at the jetty for the flight from Heathrow to Amman the Detainee was advised by letter that her most recent judicial review application had been unsuccessful. The Detainee refused to voluntarily board the aircraft. The Detainee was carried on to the aircraft by the Second and Third Claimants using approved techniques supported by the Fourth Claimant who placed a rigid bar handcuff on the Detainee from 1620 to 1635 until the Detainee was compliant and calm. Again, the Tribunal cannot see that this would be something that was outside what could reasonably be anticipated on such a deportation.[78]Use of force forms were completed by the Claimants on the flight to Amman (pages 296-317). The salient points of each are as follows: a) Ms Basiony i) The detainee’s solicitor had been abusive / threatening to her in a telephone call; ii) When the detainee was given a last letter or refusal to remain she “screamed and dropped her body weight and dragging herself” (299); iii) The detainee was carried to her chair where she had to be held for a time before she calmed down and after that point there was no further disruptive behaviour displayed and no further issues. b) Ms Jacob and Ms Pearce provided a similar account of getting the detainee onto the aircraft. c) Ms Crabbe’s account is similar in relation to the detainee becoming a dead weight but she also asserts that the detainee “kicked out” and became more violent and disruptive but became compliant after some shouting in her seat. The period of disruption appears to be from 1620 to 1635 (324).[79]In their witness statements to the Tribunal Ms Crabbe indicates a struggle to get the Claimant to her seat. We have concluded that whilst the Claimant did become non-compliant at the point that she was required to board the aircraft the period when physical force was required was a relatively short period and then did not surface again in the removal. We do not accept that from a physical perspective that this was a particularly onerous removal at all. We have also considered the evidence that the Claimant was “emotionally draining” too. We find that Ms Basiony has exaggerated the effect upon her of the various matters she details within her statement about the journey. Whilst the threat from the solicitor was unpleasant and the discussions with the deportee were dealing with negative matters we find that such is the meat and drink of the job. It is not a pleasant aspect of the role but it is one that is inevitable and known when you sign up for it. In summary we do not find anything exceptional about the removal.[80]In accordance with the Respondent's contractual requirements with the Home Office a physical examination of the Detainee was conducted by Robert Myall, the medical escort, on 7 June 2019 at 1634 (pages 294- 295).[81]The Claimants and the detainee departed from London Heathrow airport on a Jordanian airlines flight at 1730 on 7 June 2019. The waist restraint belt was removed after take-off at 1730. We note that there is no record of any physical challenge to the deportation from this point on.[82]A drink and snack were consumed by the Detainee on the flight at 1800 on 7 June 2019 (page 324) and at 1850 the Detainee consumed a hot meal on the flight (page 324).[83]Mr Myles, the medical escort, noted that he had a hot airline meal, a cup of team and some water on the flight (page 455).[84]The flight landed at the Queen Alla International Airport in Amman, Jordan on 08 June 2019 at or around 2200. The Claimants and the Detainee transited through the airport. There was no time for a break given the need to catch the connecting flight.[85]On arrival in Oman, the Fourth Claimant received the text message from Jason Pitt declining the request for a rest period on arrival in Amman. He advised the Fourth Claimant that if the job changed, she was to inform him. We cannot see that this decision by Mr Pitt was anything other than reasonable in all the circumstances of the removal.[86]The Fourth Claimant made a further call to request a rest period to Phil Inglis, the night DCOM, before boarding the second flight to Damman. Again, we can see no basis for this renewed request and further we consider that Ms Crabbe was well aware that there were not circumstances which had taken place that would suggest that such a stop over / rest period was necessary. Again this is consistent with the Claimants intention always to try and force the issue so that either a rest was granted which would set some form of precedent that the Trade Union could use in the future or, as we find Ms Crabbe was reasonably certain that the stop over would not be permitted, Ms Crabbe was simply setting all the “ducks in a row” to assist with the preconceived future litigation.[87]The Claimants and the detainee departed from the Queen Alla International Airport in Amman, Jordan and arrived in Damman, Saudi Arabia early the next morning.[88]The Claimants report that the Detainee was at times tearful but did not become disruptive again.[89]At 0010 food and drink were offered to the Detainee on the flight and accepted (page 325).[90]The Claimants handed the Detainee to the immigration authorities between 0130 and 0200 on 8 June 2019. We find that the part of the operation that could be said to have the potential to become genuinely onerous ended at the point of handover. We acknowledge that the Claimant had been on official duty for a period of around 18 Hours and that the deportee had been in their custody and control for approximately 14.5 hours. We accept that there was a need on all of the accompanying staff to be on alert and ready to act throughout that period although so far as primary responsibility that would be shared between those in close proximity to the Claimant.[91]There were four staff allocated to “guard” and detain the deportee. The minimum number was three on such a trip. There was a medic as well but his role was not the same as the others. Whilst on the aircraft the deportee was between two of the Claimants with the other two in close proximity. So far as rest breaks were concerned we consider that it would have been reasonable for staff to rotate so that the primary responsibility of those sitting next to the deportee could be shared whilst one other looked on. We consider that it would have been quite possible for the fourth member to have taken a fifteenminute rest break either in their seat or alternatively taking a stroll to a different part of the aircraft.[92]Much of the time was spent travelling in different modes of transport either next to the Claimant or in close proximity. Whilst we accept that after the stop at Morrisons the Claimants did not take a rest break we consider that they did have the opportunity to do so whilst the other three staff guarded the deportee. If an incident took place then it is highly likely that the three would have been able to deal with matters and if necessary the fourth could have cut short their break and resumed it at a later time.[93]At 0343 on 8 June 2019 Ibrahim Lamah, OSE DCOM of the Respondent emailed the Detainee Escorting Population Management Unit Duty Manager at the Home Office to request that the claimants' return to the UK (planned for 08/06/2019) following the successful escort of the detainee be delayed for 24 hours to allow for downtime (page 343-344). He wrote: “The senior contacted the officer short while ago requesting downtime on the basis that the team had had to use force on the detainee in the UK and have had to stay alert the full journey including transit and the team feel really tired. The total hours of this removal will be 34 hours from muster to demuster. As per policy, the removal does not warrant downtime, and for that reason, the downtime was not built in at the tasking stage. I have contacted CWT and there will be no airline costs as the tickets are flexible. The team will have a total of 24 hours rest in Amman should you wish to authorise the downtime. The financial implications will be the hotel, taxi, food and beverages in Amman. The rooms alone will be £101.00 per person per night so a total of £505 for the rooms . Rough estimate for the total amount including taxi and refreshments will be around £800. As for operational implications, should you wish to authorise the downtime the following removals will become in jeopardy (three numbers of deportations are given)”[94]We have already noted that the period and extent of force used was by no means significant. We can not see any reason why staying alert throughout the journey would have been out of the ordinary as one would think that staying alert whilst having a detainee would be the norm as opposed to the exception. We also note that the other reason given for the stopover was that the Claimants felt “really tired”. Again, that is not surprising or exceptional following a full day and what was a late night / early morning handover. We note that the reason given to Mr Lamah for the stopover was tiredness as opposed to any wider health and safety reason and it was not declared at that point as a matter of principle on the Working Time Directive.[95]After handing over the Detainee the Claimants had a coffee before boarding their return flight to Amman at 0415 (page 363). Mr Myles said that they had a cup of coffee from the café before the return flight (page 455). This is the next phase of the assignment where the Claimants had no responsibility for a detainee and were able to spend their time as they wished on the trip home save that they were unable to drink alcohol. We accept that the Claimants remained working in the sense that they were still on the assignment but they were able to take breaks and did not have the same requirements of alertness as was required before. They were travelling home. Indeed, we accept that from muster to demuster the Claimants would be deemed to be working in the technical sense. There were times when the work was harder (the fifteen minutes of getting on the flight) and times when the work was not onerous at all (waiting for the flight to depart and on sitting on flights coming home). There were also periods in between these extremes.[96]Before boarding the return flight from Damman to Amman at 0415 the Fourth Claimant called Mr Inglis to ask if there was an update on the request for a rest period.[97]The Fourth Claimant called Mr Inglis again on arrival in Amman at 0630 for an update on the request for a rest period. The Fourth Claimant was advised that the request had been escalated to the Home Office for approval, but they had been advised to wait until a senior Home Office manager arrived at 0700 before a decision would be made. The Fourth Claimant was asked to call back half an hour later when the decision would have been made by the Home Office.[98]On 8 June 2019 at 0731 Beth Day, Operations Manager, Detention and Escorting Service at the Home Office, asked Mr Lamah to re-submit the request on a standard form. The form was completed and submitted at 0802 to Ms Day.[99]At 0821, Ms Day advised that the request had been escalated to the on- call SEO Judith Davies and the request was refused on the grounds that the level of complexity of the removal was not out of the ordinary (page 339).[100]The email read: “I've discussed this request with our on-call SEO Judith Davies who is not minded to authorise. It doesn't appear from the explanation given that the level of complexity of this removal was out of the ordinary”. The Tribunal fully concurs with the assessment of the SEO.[101]Before the Home Office response was relayed to them the Claimants booked into the Marriott hotel in Amman using the Fourth Claimant's company credit card. The Claimants incurred expenses at the Marriott (page 386-392).[102]The Fourth Claimant was notified at 0830 by DCO James Winder that the request had been refused by the Home Office.[103]The Claimants did not board their pre-booked return flight to the UK scheduled to leave Amman at 1000 on 8 June 2019 and arrive at London Heathrow airport at 1525 on 8 June 2019.[104]The Claimants flew into Amman and could have waited at the airport to catch the flight back to the UK. We accept that there was nothing that would have prevented them from using the facilities at the airport to wash, feed and rest if they wished. Instead despite not having permission to do so there was a decision by the Claimants that they would have a stop-over. We find that this was the intention of the Claimants from the outset as appoint of principle.[105]There was a Form filled out by Ms Crabbe at the end of the trip entitled “Overseas Escorting End of Job Report (318) where she set out the times of various flights and described the detainee’s behaviour as being “disruptive on boarding”. The Job Duration was marked as 58 Hours for Ms Crabbe and 57.5 for the other three Claimants and the medic.[106]On 8 June 2019 at 2028 Salif N’Diaye wrote to the Home Office including DEPMU Removals and Judith Davies as follows: “I have been advised that despite the refusal from the duties CIO Judith Davies the team of five took upon themselves to stay in Amman and get some downtime. Their returned tickets are now obsolete and brand-new ones will be needed. The new cost for the five escorts will be £3418.50 (if we manage to get the usual fares) or £6350 pounds (if we have to go for the high fares due to the short notice) and an authorisation will be required to issue the new tickets. If you could advise as soon as possible whether you are authorising this new cost or denying it, that would be very much appreciated . PS Please note that by the team staying over this will have an impact on two removals for the 10th of June 2019.”[107]Judith Davies responded at 2130: “As you are aware I declined this downtime request at 8:30 this morning as the escort activity as described was within what I consider normal, the removal did not appear to have increased in complexity or difficulty, the job was under 36 hours in total and I needed to consider the cost and impact of the jeopardised removals. I'm dismayed some 12 hours later to learn that the escorts unilaterally took it upon themselves to go against this and that the authority is now being asked to authorise the substantial costs incurred and accept the associated impact of two failed removals. I consider that any costs incurred are an internal issue for Mitie C&C and therefore I am not willing to authorise them. You have confirmed that you will now arrange return flights and will seek to do what you can do to recover the jeopardised removals below as you know from your attendance on the EDB, call the first is a Complex Cases CC case whose removal is a very high priority and its failure risks attracting considerable reputational damage to Mitie and by association DEPMU. The second is also a CC case which we would not wish to see fail.”[108]Ms Davies is dismayed at what the Claimants have done in direct contravention of what they were told to do. Ms Davies is the client. It would not be unusual or unreasonable for the Respondents to be concerned about Ms Davies’ view or opinion in terms of their reputation as providers of the service for the Home Office. In addition, the decision to stay was thought to put other deportations at risk and from Mitie’s perspective the costs expended by the Claimants would come directly out of any profit they made from the deportation. It is not at all surprising that the Respondents took these issues very seriously indeed.[109]On 08 June 2019 at 1900 the Fourth Claimant completed an Incident Report form (page 357-365) to account for the additional unapproved night spent in [Amman]. Throughout this document the Claimants requests were referred to as requests for their “statutory right to rest” and the Fourth Claimant sought to justify the actions. The request had not been framed in this way during the trip itself[110]The Claimants returned to Heathrow airport at 1525 on 9 June 2019 and de-mustered at 1700. The total job duration at that point was 57.5 hours (58 hours for the Fourth Claimant).[111]The costs incurred by the Respondent as result of the delayed arrival of the Claimants was £6,832.89, inclusive of additional staff time. These costs could not be passed to the Home Office as they had not agreed to pay them. The extra costs incurred would have to be met by the Claimants’ employer and so would amount to a diminution of the value of the work undertaken by the Respondents[112]On 14 June 2019, the Fourth Claimant completed an OSE Card transaction log accounting for £1429.32 worth of expenses incurred on the overnight stay in Amman (page 395).[113]On 20 June 2019 John McClure, Deputy Director and Head of Overseas at the Respondent, asked Derek Ross, Area Manager Scotland In Country Escorting, to investigate the failure of the Fourth Claimant and her team to return to the UK at the appointed time or in line with the appointed arrangements (397-398).[114]On 26 June 2019, the Claimants were invited to individual investigatory meetings regarding the late return of the team from the overseas transfer on 07 and 08 June 2019 (pages 422-428).[115]We consider that an investigation into the circumstances surrounding the Claimants unilateral decision to take downtime despite not having permission to do so was inevitable. The Claimants were well aware that permission was required and they had decided to go ahead anyway costing their employer a reasonably substantial sum which could not be recouped, incurring the displeasure of their client and possibly placing other removals at jeopardy. At the core of all of this was a disobeying the instruction of the Respondents. Further enquiries were inevitable.[116]In or around July 2019, the Claimants attended individual disciplinary investigation meetings with Mr Ross (pages 446-447, 448- 450).[117]On 10 July 2019, the First Claimant attended an investigatory meeting with Mr Ross (pages 478-480). During and after the meeting on 10 July 2019 the Claimants' Trade Union representative raised a concern about potential sex discrimination in relation to an all-male crew who had carried out a removal to Saudi Arabia with a rest period included at the planning stage (page 481-2). The Claimants alleged that this constituted a protected act; the Respondents deny that Mr Ross did a protected act or that Mr Ross’ views amount to the Claimants having done a protected act.[118]On 15 July 2019, the Claimants received an investigation update letter detailing that the investigation process had been adjourned to conduct a fact-finding exercise following concerns that were raised from an investigatory meeting held on 10 July 2019.[119]Gregory Ashton, the Respondent's Overseas Contract Manager, completed an investigation report into all planned Saudi Arabia removals since May 2018 on 31 July 2019 following the concerns raised by Community Union on 10 July 2019 (page 494 – 505).[120]On 22 August 2019, the claimants were sent a letter by Mr Ross inviting them to a further investigatory meeting on 5 September 2019 (page 506-509).[121]On 05 September 2019 Mr Ross held a further investigation meeting with each of the Claimants individually (pages 529-542, 553-564, 543-552 and 565-575).[122]On 01 October 2019, an Investigation Report was produced by Derek Ross (Head of In Country Escorting – Scotland) and Ellie Bruce (Senior Business Development Manager) (pages 576-597).[123]The Conclusion that Mr Ross came to, was as follows: “On the balance of probability, it is the investigating officer’s conclusion that the team acted outside of their authority by: a) Committing unauthorised absence by not boarding the flight from Amman to Heathrow. b) Performing an unauthorised use of the company credit card that was not authorised or approved by any Care and Custody manager in contravention of the Employee Business Expenses and Entertainment Procedure. c) Failing to observe company procedures related to travel calculations and rest break bandings along with decisions on the statutory right to rest relating to this particular job made by DEPMU. The consequences of their actions affected the company and customer’s reputation and has brought the company into serious disrepute.” Among a series of recommendations Mr Ross suggested that the respondents consider formal action formal action under the Respondents disciplinary policy for the four Claimants.[124]The Claimants were invited to separate disciplinary hearings in October/November 2019 by Paul Morrison, Contract Director– Escorting Services (pages 598-607, 630-635). The allegations that they each faced were: a) Failure to observe company procedures b) Committing an unauthorised absence c) Personal conduct that affects the company and the customers reputation[125]In or around October/November 2019, each of the Claimants lodged formal grievances alleging direct discrimination, harassment and victimisation on the grounds of sex (First Grievance) (pages 608-610, 655-657, 691-696). Jim Taylor-Dayus, Area Manager Manchester and Midlands, was appointed to consider the Claimants' grievances.[126]In or around October/November 2019 each of the Claimants attended a disciplinary meeting with Paul Morrison (pages 621-629, 658- 668, 699-706). At the disciplinary meetings written submissions were presented to Mr Morrison by the Claimants' Trade Union representative, Mr Bill Lamb (pages 612-620, 636-645, 675-690).[127]Mr Lamb’s submissions were substantial and he asserted at para 24 of that document (612-620) that it was his belief that Ms Basiony and the rest of the Claimants were being “disciplined as a result of a breach of the Working Time Regulations by the employer, that the health and safety provisions of the Employment Rights Act 1996 will apply, as too will the relevant provisions of the Health and Safety at Work etc Act 1974, and that but for the unlawful actions of the company in respect of working time and health and safety this disciplinary procedure could not have happened”. There is much in the document that appears to have been taken from the advice that the Trade Union had previously received.[128]On 30 October 2019, Grant Williams, Legal Officer, Community Union, emailed Stacey McClymont, HR Business Partner with the Respondent, to request that the First Claimant's grievance and disciplinary processes were run concurrently (page 652). Ms McClymont responded by email on the same day to confirm that was the case (page 649-50).[129]On or around November 2019 the Respondent issued the following disciplinary sanctions to the Claimants: a) The First, Second and Third Claimants received a first written warning (pages 670-673, 713-729); and b) The Fourth Claimant received a first and final written warning (pages 707-711).[130]Within the letters the following general findings were made: a) The removal was in compliance with the banding policy in force; b) The Claimants knowingly and deliberately decided to stay in Amman without permission and in full knowledge that it was contrary to prior instruction; c) The Claimants had failed to abide by an agreed travel plan; d) There were numerous chances to take refreshments / stagger breaks particularly in the absence of the deportee on the return leg; e) DEPMU had refused authority for the stop over twice; f) The net result of the Claimants’ action was 22 hours unauthorised absence each and additional costs; g) It was noted that there had been numerous requests for the stop over even prior to departure.[131]The Tribunal considers that each of those findings were ones that the Respondents were fully entitled to come to on the evidence that they had before them.[132]The Claimants' submitted appeals against their disciplinary sanctions in or around November/December 2019 to Mr Danny Spencer, Operations Director (pages 697-698, 713-14, 730-733). The Claimants were invited to attend disciplinary appeal hearings with Mr Danny Spencer in January 2020 (pages 738-740). These appeals have not been heard due to the outstanding grievances submitted (see below).[133]In or around December 2019 the Claimants were invited to attend grievance hearings with Mr Taylor-Dayus (pages 712).[134]On 7 January 2020 Mr Spencer wrote to each of the Claimants to advise them that their grievances would be heard before their disciplinary appeals (pages 745-748).[135]On 22 January 2021, Mr Taylor-Dayus held grievance meetings with each of the Claimants to consider the First Grievance (pages 751- 760).[136]On 10 February 2020, Mr Taylor-Dayus wrote to each of the Claimants informing them of the outcome of their grievances (pages 761-773). The First Grievances were not upheld.[137]On or around March 2020 the Claimants lodged a second grievance (Second Grievance) about how the first grievance had been handled (pages 783-789).[138]The Claimants were invited to grievance meetings with Carl Blackford, Head of ICE, Escorting Services on or around April 2020 (pages 802-804). Due to the COVID-19 lockdown the meetings were postponed to July 2020 (pages 825-831). Working Time Regulations 1998[139]Part of the Claimant’s case relates to the Working Time Regulations 1998 (WTR). The purpose of the Regulations and the Directive from whence they sprang was to protect the health and safety of workers by ensuring that they have entitlements to a range of benefits including minimum rest periods and appropriate breaks. Although the United Kingdom has left the EU the WTR will remain as part of what is known as “retained EU law”.[140]When interpreting the WTR, the Tribunal should take a purposive approach where the meaning is unclear and is still entitled to use EU law as an aid to interpretation.[141]The WTR so far as is relevant to this case is as follows: a) Regulation 2 defines both “working time” and “rest period”. b) Working Time is defined as “any period during which he is working at his employer’s disposal and carrying out his activity or duties” c) A Rest Period is defined as being “a period which is not working time, other than a rest break or leave to which an employer is entitled under these Regulations”. d) Regulation 10 which is headed Daily Rest states that “An adult worker is entitled to a rest period of not less than eleven consecutive hours in each 24-hour period during which he works for his employer”. e) Regulation 12 which is headed Rest Breaks states at sub paragraph 1 that “Where an adult worker’s daily working time is more than six hours, he is entitled to a rest break”. f) Sub paragraph 3 of Reg.12 states “Subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for in paragraph (1) is an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from his workstation if he has one”. There is no collective or workforce agreement in this case. g) Regulation 18(2) (c) states that certain WTR provisions including the ones set out at Regulation 10 and 12 do not apply “where characteristics peculiar to certain specific services such as the armed forces or the police, or to certain specific activities in the civil protection services, inevitably conflict with the provisions of these Regulations”. h) Regulation 21 states that “Subject to regulation 24, regulations 10(1) and 12(1) do not apply in relation to a worker where(a) (A) the worker’s activities are such that his place of work and place of residence are distant from one another or his different places of work are distant from one another;(b) (B) where the worker is engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, as may be the case for security guards and caretakers or security firms;(c) (C) where the worker’s activities involve the need for continuity of service or production, as may be the case in relation to certain categories of work including “civil protection services”. i) Regulation 24 states that “Where the application of any provision of these Regulations is excluded by regulation 21 or 22…… and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break period of compensatory rest, and (B) in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker’s health and safety.[142]We summarise those provisions in the context of this case. As employees / workers the Claimants would have an entitlement to Daily Rest or Rest Breaks pursuant to Regulations 10 and 12 subject to Regulation 18 (2) (c). If Regulation 18 (2) (c) applies then the Claimants have no right to such Rest / Break.[143]If Reg 18(2) (c) does not apply then we need to consider whether the Claimants come within “Other special cases” as set out at Regulation 21 which would disapply Reg 10 and 12. If so we then need to consider the provisions of Reg 24 and consider whether or not the Respondent has complied with their obligations thereunder. We deal with each matter in turn.[144]Conclusions Are the provisions of the WTR excluded under Regulation 18 WTR? The scope of the Directive from which the exclusion in the Regulations applies was considered by the Court in Pfeiffer v Deutsches Rotes Kreuz, Kreisverband Waldshut eV (2005) IRLR 137. In that case the court held that art 1(3) did not exclude from the scope of the Directive the activity of operating a public emergency ambulance service. Having commented that the Framework Health and Safety Directive 'must be taken to be broad in scope' and consequently exclusions from its scope such as that in art 2(2) 'must be interpreted restrictively', the court concluded that the restriction in art 2(2): ''… was adopted purely for the purpose of ensuring the proper operation of services essential for the protection of public health, safety and order in cases, such as a catastrophe, the gravity and scale of which are exceptional and a characteristic of which is the fact that, by their nature, they do not lend themselves to planning as regards the working time of teams of emergency workers.' (para 55)'[145]Since the working time of the ambulance crews could be planned, the service was not within the exclusion. Only the 'civil protection service in the strict sense' met the criteria.[146]Harvey on Employment Law notes that “As no service dedicated solely to civil protection from unforeseen emergencies exists in Britain, it seems that the exception has no practical effect, a view apparently shared by the UK Government, since even the Armed Services are expressly covered by the WTR by virtue of Reg 38 WTR”.[147]A decision of the ECJ postdating Pfeiffer, Personalrat der Feuerwehr Hamburg v Leiter der Feuerwehr Hamburg [2005] ECR I-7111, reached the same conclusion in relation to the operational staff of a fire service and the ECJ reached the same conclusion again when asked effectively the same question about the position of municipally-employed firefighters in Neidel v Stadt Frankfurt am Main: C-337/10, [2012] IRLR 607, [2012] ICR 1201.[148]The first example of a class of workers to be held by the ECJ to be excluded from the scope of the WTD by the combined effect of art 2(2) of the Framework Directive and art 1(3) or the WTD was foster parents.[149]In Sindicatul Familia Constanta and Ustina Cvas v Directia Generala de Asistenta Sociala si Protectia Copilului Constanta, [2019] IRLR 167, ('Constanta') foster parents employed by the Directorate General for Social Assistance and the Protection of Minors under contracts that required them to provide foster parenting services to children allocated to them, in their own homes, and on a full-time basis with no facility for rest periods. The Directorate's permission was required for them to take any form of break or leave without the child or children they were fostering. The court held that the nature of the work done did inevitably conflict with the terms of the Framework Directive and therefore they were excluded from the application of the WTD by Article 2 thereof.[150]In this case the Regulation 18 exclusion would apply if “certain specific activities in the civil protection services inevitably conflict with the provisions of these Regulations”. “Civil Protection Services” is defined at Reg 2 of the WTR as “including the police, fire brigades and ambulance services, the security and intelligence services, customs and immigration officers, the prison service, the coastguard and lifeboat crew and other voluntary rescue services”.[151]The Claimants assert that the WTR 1998 provisions are not excluded. They point to the restrictive interpretation of the Regulations which is emphasised in Pfeiffer at para 54 and Neidel at para 21.[152]They say that the focal point must be on the nature of the “certain specific activities carried out by civil protection services and then a consideration needs to be made as to whether there is an inevitable conflict with the Regulations and the purpose of them”.[153]The Claimants cite Constanta at paragraph 56: “In addition, the criterion used in the first subparagraph of Article 2(2) of Directive 89/391 to exclude certain activities from the scope of that directive and, consequently, from that of Directive 2003/88, is based not on the fact that workers belong to one of the sectors of the public service referred to in that provision, taken as a whole, but exclusively on the specific nature of certain particular tasks performed by workers in the sectors referred to in that provision, which justify an exception to the rule on the protection of the safety and health of workers, on account of the absolute necessity to guarantee effective protection of the community at large.”[154]The Claimants accept that the tasks undertaken by themselves are ones which are in the public interest and form part of the functions of the state. Those tasks are capable of being and are planned and are not in response to an unforeseen catastrophe of exceptional gravity or scale. They point out that the sole exception so far under this provision was the Constanta foster parents but that exception is very different to the issue here.[155]The Claimants state that there is no “inevitable conflict” because: a) Their work can be planned b) Resource could be allocated to allow breaks during a removal; c) Periods of rest can be given following handover of the detainee d) All parties are in agreement that compensatory rest can be granted and the Respondents have asserted that they do comply with the obligation for compensatory rest.[156]The Respondents assert that Regulation 18 does disapply the WTR. It agrees with the Claimants that there is a need, as a start point, to determine the tasks carried out by the Claimants to ascertain whether they inevitably conflict with the WTR and also agree that it requires a restrictive interpretation.[157]The Respondent cited the recent case of BK Republika Slovenija C - 742/19. It was reported on 15 July 2021 and does not form part of retained EU law but although not bound by it we are entitled to have regard to it pursuant to section 6(2) of the European Union (Withdrawal) Act 2018 as amended.[158]The following is quoted from the Respondent’s closing submissions at para 17-19: “In BK the CJEU confirmed that military officers on standby duties could be excluded in certain circumstances from the relevant requirements under national legislation giving effect to the WTD. The CJEU focused in particular on a functional assessment of the tasks performed by the military personnel at any given time, and whether those particular tasks did not lend themselves to planning in relation to working time (see [56]- [57]). They further focused on the extent to which the specific tasks or activities “must be continuous in order to ensure the effective performance of essential functions of the State” (see [58]). In BK, the CJEU distinguishes between two sets of factual circumstances in which Article 2(2) HSD may serve to exclude working time rights: a) Those activities which are ordinarily capable of being planned and which therefore are not excluded in ordinary circumstances and where Article 2(2) HSD only operates to exclude working time rights “in circumstances whose gravity and scale are exceptional, such as natural or technological disasters, attacks or serious accidents, which require the adoption of measures indispensable for the protection of the life, health and safety of the community at large” (at [59]) (see Pfeiffer; Neidel) b) Those certain activities of the state which, even when performed in normal circumstances, “have characteristics which mean that their very nature is absolutely incompatible with the planning of working time in a way that respects the requirements of the [WTD].” The CJEU identify in particular those public service activities which by their nature “can be carried out only on a continuous basis and only by the same worker, without it being possible to establish a rotation system allowing the worker to be granted, at regular intervals, the right to rest hours or days” (see Constanta). These activities must be excluded from the application of the WTD in their entirety (see [60]- [62]). On the basis of this distinction, and a functional assessment of the specific tasks being carried out rather than the generic role performed, the CJEU held that there is no blanket disapplication of WTD rights for military personnel. Stand by time was not inherently in conflict with WTD rights (at least outside preparation for or participation in military operations, and in the absence of grave and exceptional circumstances) (see [64], [72]- [74]). However, certain categories of military activity may be excluded from WTD rights in particular cases where an incompatibility is established. Examples given by the CJEU include “activities carried out by members of the armed forces who, either because they are highly qualified or due to the extremely sensitive nature of the tasks assigned to them, are extremely difficult to replace with other members of the armed forces by means of a rotation system which would make it possible to ensure compliance [with WTD rights]”. and the proper performance of the essential tasks assigned to them” (see [75]-[76] and [88]).[159]The Respondent went on to assert that the Claimants work did fall within the definition of civil protection services as the role was: a) Akin to that of prison officers and part of the immigration services and performed essential services for the state. It prayed in aid the fact that the DCO role was sufficiently similar to prison officers that the prohibition on industrial action by prison officers should become part of their collective agreement. b) It was then said that by virtue of their detaining function whilst working in transit and overseas that activities of DCOs inevitably conflict with WTR rights during that phase . The Respondent asserted that this fell “within the paradigm recognised by the CJEU and set out at in paragraph 18 above at (b). c) It is not possible to provide for full rights under the WTR because of the peculiar nature of the role of overseas DCOs.[160]We prefer the Claimants’ arguments on this point. There is a real need if at all possible to ensure that workers have adequate breaks and rest in line with the Regulations and we note that this particular derogation has been very narrowly prescribed in the past. Whilst we accept that the role that the Claimants undertake would come within the ambit of a civil protection service it is also clear from the case law that that finding alone would be insufficient to bring it outside the Regulations but there is a further need to show that their specific activities inevitably conflict with the Regulations.[161]We do not accept that in the Claimants case there is an inevitable conflict which would lead to the Claimants being outside the reach of the WTR. Whilst there are times on a removal when it will be more difficult or indeed impossible for the WTR rights to be exercised at a specific time that is only for comparatively small parts of the trip. There are substantial periods where breaks can be taken especially after the deportee has been handed over and indeed at other times on the journey.[162]We are persuaded by the arguments put forward by the Claimants set out above which we accept and conclude that the WTR are not excluded for the Claimants by virtue of Regulation 18. Regulation 21[163]The next consideration is in respect of Regulation 21 of WTR in order to consider whether or not the Claimants come within the “Other Special Cases” detailed above.[164]In fact there is no issue between the parties that the Claimants do come within Regulation 21 and at paragraph 5 of the Amended issues it is admitted that Regulation 24 is engaged as a result of Regulation 21 or to put it another way Regs 10 and 12 are disapplied because of Regulation 21. We agree with that position.[165]At para 27 of the Claimant’s Opening Submissions it is accepted that the Claimant’s comply with what is set out at Regulation 21 (b) and (c) namely it is accepted that each of the Claimants was “engaged in security … activities requiring a permanent presence in order to protect property and persons” and that “the worker’s activities involve the need for continuity of service or production”.[166]The Claimant does not accept that the Claimant’s activities were such that their place of work and place of residence are distant from one another or that their different places of work are distant from one another as set out at Regulation 21(a).[167]The Respondent contends that paragraph (a) does apply because on this assignment they were working at various locations between leaving and returning to their principal place of work which was Spectrum House in Gatwick. The Respondent pointed out that in cross examination Ms Basiony accepted that during the assignment that she worked from different places and those places were distant from each other. That was the evidence tendered.[168]Having considered matters we have no hesitation in concluding that paragraph (a) does apply to these Claimants on this deportation. The places of work were many miles away from the Claimant’s respective residences and the various different places or work on this trip (Gatwick, Bedfordshire, Saudi Arabia etc) were also distant from each other.[169]We consider that sub sections (a), (b) and (c) are individually and collectively sufficient for the rights conferred by Reg 10 and Reg 12 to fall away for the Claimants which moves matters forward to a consideration of the provisions of Regulation 24.[170]For ease of reference we reproduce Regulation 24 again: 24. Where the application of any provision of these Regulations is excluded by Regulation 21 … and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break— (a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest, and (b)in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker’s health and safety.[171]Neither party has suggested that this is an exceptional case and so the obligation on the Respondent which we are to consider is where an employee is required to work during a period which would otherwise be a rest period or rest break the Respondent should wherever possible allow the employee to take an equivalent period of compensatory rest. The Tribunal notes that whilst the provision itself is simply stated the precise obligation on the employer is far from easy to pinpoint.[172]We remind ourselves that in this case the issue relates to both compensation for Reg 10 Rest Periods and Reg 12 Rest Breaks and that we must deal with compensatory rest in respect of each.[173]What are the requirements for Compensatory Rest Periods? The character of working time against rest generally and compensatory rest in particular has been considered on a number of occasions. It should be noted that in actual fact there is no obligation on an individual to actually rest in the sense of relaxing, sleeping or recovering strength. An individual can do those things within their Rest Period but equally an individual could undertake a tiring activity such as an Ironman Triathlon if they wish which would not be restful at all.[174]Working Time is defined at Reg 2(1) as being a period when a worker is working; is at his employer’s disposal and is carrying out his activity or duties. Edwards v Encirc Limited (2015) IRLR 528 states that all three conditions must be satisfied to constitute Working Time (Claimant at para 18a submissions and Respondent at para 28 submissions and at footnote 7).[175]The Respondent contends that there is a strict dichotomy between rest and work. They cite in support the fact that in DJ v Radiotelevizija Slovenija (2021) IRLR 479 the two are said to be mutually exclusive and that in Truslove v Scottish Ambulance (2014) ICR 1232 it was said “that which is not work is rest and vice versa”.[176]The Respondent also asserted that travelling for business was working time and it was also averred that working time was also when the worker was permitted to sleep or in a hotel but was nonetheless subject to some control or restraint from the employer (Landeshauptstadt v Jaeger (2004) ICR 1528.[177]The Respondent averred that Compensatory Rest Periods must follow immediately after the period of working time and that such periods must attain a certain quality which was described in Jaeger as: “Characterised by the fact that during such periods the work is not subject to any obligation vis a vis his employer which may prevent him from pursuing freely and without interruption his own interests in order to neutralise the effects of work on his health or safety”[178]The Respondent cited R (on the application of FBU v South Yorkshire Fire and Rescue Authority (2018) IRLR at 717 where Kerr J rejected the argument that the time given to firefighters to rest could constitute compensatory rest because the breaks provided: “…are not a complete break from the work environment; The employee is not able to stop work, go home, relax, forget about work and pursue his own interest.”[179]Langstaff P in emphasised that the relaxation which is available in the company of family and friends or at least the choice to have such relaxation and the pursuit of personal hobbies and the like or characterised by the exercise of free choice and free from the direction of the employer, is unavailable where an employee remained shackled by his employer to particular location. If that is the case then the time is Working Time and not non-Working Time.[180]The central question was said to be the degree to which the period in question is subject to constraints imposed on the worker by the employer which impacts upon the workers’ ability to freely manage their time including constraining the workers’ ability to engage freely with their family and social environment.[181]Certain factors had emerged from the Slovenija case above which are said to impact upon the determination of whether a period is working time or rest. It includes that the relevant constraints for determining what is and is not working time are those imposed by the employer and that if a workplace is distinguishable from home then it is relevant to the classification of working time against non-working time.[182]From this legal background the Respondent’s primary position was that all of the time from muster to demuster would constitute working time. Any “downtime” for example the time spent in a hotel in Amman in this case was Working Time and that the fact that sleep or rest was possible did not exclude it from being Working Time and therefore could not assume the quality required for Compensatory Rest. The first occasion that proper Compensatory Rest could be achieved, meeting the appropriate qualitative requirements is when the Claimants have returned to the UK and can elect to return home or stay in a hotel for their rest.[183]The Claimants emphasised that the compensatory Rest Periods according to Jaeger should be at a time which enable the worker to recover from the fatigue caused by work. In order for this to be adequate compensatory rest there must be no obligations from the employer that prevent him or her from pursuing freely and without interruption their own interests and they should follow on from the working time.[184]The primary difference between the Respondent’s position and the Claimant’s position was that whether or not the concept of compensatory rest is wholly incompatible with the idea of working time or to put it another way can compensatory rest be claimed during working time. As can be seen above the Respondent’s position was very clear that working time and a rest period were mutually exclusive. The Claimants believed that the only way that the Respondent could provide them with compensatory rest was by having a stop over as opposed to waiting until they returned back to the UK.[185]The Claimant asserted that the period in Amman was a period where the Claimants were free to enjoy themselves in relative luxury i.e. staying in a four-star hotel with all the comforts that go with that. It was suggested that the Claimants were not working in the traditional sense of the word and would deem it as a holiday. It was a complete break from the work environment apart for the limitations brought about by the location that they are in and the fact that they cannot drink alcohol. The Claimants assert that they were able to freely pursue their interests in order to neutralise the effects of work on their health and safety and that it was a period of genuine rest.[186]Dealing with compensatory rest breaks it was held in Crawford v Network Rail (2019) ICR 1206 that such a break did not require a continuous period of 20 minutes rest but should have the same value in terms of contributing to the worker’s well-being. Whether or not it was equivalent was for the Tribunal to assess. In Crawford the policy of taking naturally occurring breaks where operationally possible was sufficient to satisfy the requirements of Compensatory Rest Breaks.[187]We have carefully considered the parties helpful submissions and have concluded that we prefer the representations put forward by the Respondent on this point. Rest pursuant to the WTR does not necessarily mean the same as “rest” in common parlance. We accept that the concept of work and rest within the WTR are mutually exclusive as set out in the DJ and Truslove cases and accept that a stopover which has the restrictions on the Claimants ability to mix with family and friends, restricts what they can do vis a vis drinking alcohol cannot amount to compensatory rest as defined.[188]We are mindful that the purpose of compensatory rest is there, inter alia, to protect the health and safety of the workers but we do not accept that there was any threat to the Claimants’ health and safety or comfort or indeed anything that had taken place on the deportation that required compensatory rest to be taken when it did. Indeed, it was more difficult and harder work to leave the airport, find accommodation etc than to simply take refreshment and clean up and then board the original aircraft home and take their compensatory rest when they arrived.[189]Clearly the nature of any stopovers will be such so as to amount to working time. We can see no difference between longer trips where there is a stopover and shorter trips where there is a stopover. If there is a stopover then it seems to the tribunal that must be working time for the reasons we have given.[190]On this deportation and indeed on any deportation there will be periods of work which have varying degrees of intensity. There will be times when the deportee is causing issues and times when the Claimants are able to put their feet up and relax waiting for transport. There will be periods in between but it is all working time from muster to demuster.[191]We accept that there was no opportunity to compensate the Claimants for Daily Rest until such time as the deportee is handed over. We accept the Respondents position that even then there is no possibility of the necessary quality of compensatory daily rest until the Claimants have returned to the UK and signed off.[192]In the Tribunal’s view there is nothing unreasonable per se about the stopover policy. We consider that the “36 hour and below no stopover” policy is within a band of times that would be reasonable. There is provision if a journey is particularly traumatic or difficult for a stopover to be factored in and we consider that is sensible in order to safeguard the health safety and wellbeing of the Claimants. In this case we are quite satisfied that such a stopover was not justified on the information we have received. It is important to note though that even if a stopover was justified it would not count as compensatory rest but simply as an extension to working time.[193]So far as rest breaks are concerned we are quite satisfied that whilst there were parts of the journey when a rest break could not be given we consider that there was ample opportunity to take the necessary breaks over the course of the whole period of working time. We consider that this is a Crawford type of case where the Claimants were able to take naturally occurring breaks where operationally possible was sufficient to satisfy the requirements of Compensatory Rest Breaks.[194]In all the circumstances we do not consider that the Respondent’s were in this case or, indeed, whenever they do not factor in a stopover, are in breach of their obligation to provide compensatory rest. We find that the first time that compensatory rest can be given is upon return in the UK. Section 44 Employment Rights Act 1996[195]Section 44 of the Employment Rights Act 1996 reads as follows so far as is relevant, taking into account the finalised List of Issues: (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— (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.[196]The issues to be considered when considering this statutory claim is: a) Was there a representative or safety committee? b) If so, was it not reasonably practicable for the Claimants to raise their issue via those means, c) If it was not, did the Claimant raise by reasonable means the circumstances connected with their work which they reasonably believed were harmful or potentially harmful to their health and safety, d) If so was any alleged detriment done on the ground that the Claimants had undertaken the matters set out at (c).[197]A detriment is to be judged from the perspective of the worker and in Jesudason v Alder Hey Childrens’ NHS Foundation Trust (2020) IRLR 374 it was found that the test was whether a reasonable employee might consider the relevant treatment to constitute a detriment and whether there was a genuine belief on the part of the Claimants.[198]We accept the Respondent’s representations that for the purposes of this statutory provision that following Castano v London General Services (2020) IRLR 417 the Claimants’ base was Spectrum House at Gatwick Airport. The assignments start from the point the Claimant leaves Spectrum House and ends when they return there.[199]The evidence which we heard from Ms Basiony was that she did not know about a Health and Safety Committee at Spectrum House until January 2020, after the matters which are relevant to this Claim. Taking into account her active Trade Union role that is perhaps surprising.[200]There was evidence that Messrs Winder and Chalk were Health and Safety representatives for overseas workers but we are not satisfied on the evidence before us that there was a functioning Health and Safety Committee operating at Spectrum House at the material time.[201]We acknowledge that Mr Winder was involved in the discussions with the overseas team and it was open to Ms Crabbe to raise issues with him that would specifically pertain to his role as the Health and Safety representative. We agree with the Respondent that the fact that she did contact him during the process shows that it was reasonably practicable for her to do so. In those circumstances the Claimants were employees at a place where there was a representative and the health and safety issues were raised with him and so the gateway to a detriment claim is shut.[202]Having said that we will continue with considering the statutory test in case there is any challenge to those findings.[203]We do not accept the point made by the Respondent at para 78 of the Respondent’s closing submissions that because it was Ms Crabbe who brought the matter to the attention of management it is only her who can fall within the statutory definition. We are quite satisfied from the evidence that the four Claimants were all in this together and that when communications were made it was clearly communicated that it was for all four Claimants and not Ms Crabbe alone. The Respondent certainly treated them in that way when they disciplined them, all be it that Ms Crabbe as supervisor did receive a harsher penalty.[204]We do not accept that the Claimants held a reasonable belief that there were circumstances connected with their work that they reasonably believed were harmful or potentially harmful to their health and safety. Whilst we accept that the Claimant had had a long working day we do not accept that they held the required belief at all. We are quite satisfied that during the trip there was no identifiable risk to their health and safety. They may well have been tired but we are wholly unable to see how being tired would have had a deleterious effect on their health and safety whilst travelling on aircraft or waiting to catch a flight which was all that they had to do once the detainee was delivered.[205]As we have stated earlier the complaints and the requests to stop off were pre planned and were going to be made regardless of what the trip brought. The requests for the stopover began even before the trip had begun. We do not find as a matter of fact that there were any health and safety issues and we do not accept the Claimants’ evidence that they believed that there were health and safety issues or that there were potentially health and safety issues.[206]Having considered paragraph 59 of Balfour Kilpatrick v Acheson (2003) IRLR 683 we do not agree that the act of deciding to abort the trip home and booking into the hotel was bringing circumstances to the Respondent’s attention by a reasonable means. If the health and safety concerns were as suggested being exhausted, hungry, thirsty and smelly the Tribunal are satisfied that food and drink outlets and showers at the airport would have satisfactorily alleviated such problems. As we have stated the decision to abort was part of a pre-planned strategy which was going to happen whatever the circumstances[207]If we are incorrect on those matters above which would dispose of the Claim we are quite satisfied that the alleged detriments were not because the Claimants had brought any health and safety issues to the Respondent’s attention. If they had raised their concerns and returned on the flight they had been instructed to, then there would have been no investigation, disciplinary action or sanction. Ms Basiony confirmed in oral evidence that the Respondent’s actions were for “insubordination and refusing a management request”. Ms Crabbe accepted that had she boarded the return flight no action would have been taken despite raising the issue.[208]We are quite satisfied that the Claimants were disciplined for not returning in accordance with the Respondent’s instructions which then had the effect of damaging the Respondents’ reputation with their client and the incurring of unnecessary additional costs which the Respondent could not recoup from the client. It had nothing to do with raising a health and safety issue.[209]There had been a long history of both the Trade Union and employees raising concerns but we received no evidence of any disciplinary action being taken against them. There is nothing within the outcome letters which suggests that the reason for the disciplinary action at any stage was on account of raising the concerns. We remind ourselves that the issue is whether or not raising the health and safety issue materially influenced the employer’s treatment of the Claimants and we unequivocally find that it did not. We are satisfied that the Respondents have discharged the burden imposed upon them by section 48(2) of the Employment Rights Act 1996.[210]Section 45A of the Employment Rights Act 1996 reads as follows so far as is relevant taking into account the List of Issues: (1) A worker 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 the worker— (a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations 1998, (b) refused (or proposed to refuse) to forgo a right conferred on him by those Regulations,[211]These claims must fail following on from the finding made above that the Respondent did not impose a requirement which was in contravention of the WTR and the Claimants, on our findings, had no right conferred upon them which they were in a position to refuse. This claim is dismissed.[212]It is acknowledged that the Claimant’s refusal to return to the UK was deemed to be an act of misconduct as detailed above and a disciplinary process was followed and sanctions applied.[213]We do not accept that an additional alleged detriment set out at para 18 of the List of Issues i.e. that the Claimants were prevented in participating in assignments for which they could earn overtime or responsibility allowances whilst engaged in meetings with the Respondent. There was no evidence to support the fact that the Claimants or any of them had actually sustained this detriment. It is for the Claimants to prove the detriment took place and there was no evidence from the Claimants that suggested that such a detriment was any more than a notional possibility. On the balance of probabilities on the evidence we have this detriment was not sustained by the Claimants and all claims in respect of this are dismissed.