Mr A Ali v Lea Interchange Bus Company Ltd: 3205986/2022

EMPLOYMENT TRIBUNALS

Case No 3205986/2022

Between

Mr A AliClaimant

Lea Interchange Bus Company LtdRespondent

Before

Employment Judge C Lewis

Members

Mr J Webb

Mr M Wood

Mr C Ludlow - Counsel for respondent

Date 1 March 2024

JUDGMENT

The unanimous decision of the Employment Tribunal is that:

[1]The Claim for unlawful deduction from wages contrary to s 13 of the Employment Rights Act 1996 in respect of pay for 19 July 2022 fails and is dismissed.

[2]The Claimant’s complaint of having been subject to a detriment for performing or proposing to perform functions as a health and safety representative pursuant to sections 44(1)(b) ERA is well-founded in respect of being marked absent on 19 July 2022.

[3]The Claimant’s complaint that he was unreasonably refused time off for carrying out trade union activities pursuant to sections 168, 169, and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992 is wellfounded in respect of 3 August 2022. Case Number: 3205986/2022 REMEDY

[4]The Claimant is entitled to the declaration above and is awarded the following compensation in respect of the infringement of Employment Rights Act 1996 s 44(1) (b) i. ½ day’s pay= £83.00 ii. Injury to feelings in the sum of £5000

[5]The Claimant is entitled to the declaration above and is awarded 2 days’ pay in respect of the infringement of TULR (C) A 1992: 2 x £166 = £332.00 JUDGMENT having been sent to the parties on 7 March 2024 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

Numbers in square brackets [] are references to page numbers in the agreed hearing bundle

[1]By a claim form presented on 16 December 2022, following a period of ACAS early conciliation from 7 October 2022 to 18 November 2022 The Claimant brought the following claims:1.1 Unlawful deduction of wages pursuant to section 13 of the Employment Rights Act 1996 (“ERA”);

1.2 Detriment for performing (or proposing to perform) functions as a health and safety representative pursuant to sections 44(1)(b) ERA; and for

1.3 Time off for carrying out trade union activities pursuant to sections 168, 169, and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992.

[2]The Respondent resisted all of those claims as set out in its Amended Grounds of Resistance [85 – 97].

[3]An updated agreed list of issues was emailed to the Tribunal on 23rd January 2024, the agreed issues were as follows: Unlawful Deduction from Wages: ss. 13, 23 and 24 Employment Rights Act 1996

[1]Did the Respondent make a deduction from the Claimant’s wages for half a day on 19 July 2022?

[2]Was that deduction authorised by virtue of a relevant provision of the Claimant’s contract?

[3]If there was an unlawful deduction of wages what is the amount of half a day’s pay? The Claimant claims 4.47 hours. The Respondent claims 4 hours and 42 minutes. Detriment for making Health and Safety Disclosures: s.44 Employment Rights Act 1996

[4]For the purposes of section 44(1) ERA 1996, was the Claimant subjected to any detriment by any act, or any deliberate failure to act, by the Respondent because he brought to the Respondent’s attention circumstances connected with his work which he reasonably believed were harmful or potentially harmful to health or safety?

[5]The Claimant relies on the following circumstances connected with his work:a. On 18 July 2022, the coolant warning light turning on on the Claimant’s bus;

b. Standing himself down for trade union duties on 19 July 2022;

c. Conducting an investigation on 19 July 2022 [the Respondent relies on the Claimant’s e-mail of 10.19am on 19 July 2022, to the Respondent, confirming that he would be “spending the day at Canning Town safeguarding” his members health and wellbeing and advising them on their legal rights, rather than carrying out an investigation].

[6]The Claimant alleges that he was subjected to the following detriments:a. Being underpaid by half a day on 19 July 2022 [the Respondent contends that it paid the Claimant on a quantum meruit basis in circumstances whereby he stood himself down on 19 July 2022 without authority]; and

b. Being refused time off due to being a representative of workers on matters of health and safety at work [the Respondent contends that the Claimant was given reasonable time off and the only date which he was refused a request for time off was on 3 August 2022, because the request was unreasonable in the circumstances.] Time off for carrying out trade union activities: ss. 168, 169 and 170 Trade Union and Labour Relations (Consolidation) Act 1992

[7]Did the Claimant request time off on 19 July, 26 July and 3 August 2022 for one of the reasons set out in s.168(1)(a)-(e)? The Claimant relies on functions related to or connected with matters falling within that provision which the employer has agreed may be so performed by the trade union in relation to his capacity as a trade union health and safety representative.

[8]Was the amount of time off requested and / or permitted reasonable in the circumstances pursuant to section 168(3) having regard to any relevant provisions of a Code of Practice issued by ACAS?

[9]If so, did the Respondent renumerate the Claimant for the time off taken on 19 July, 26 July and 3 August 2022 pursuant to s169(1)? Regard is had to s169(2) in the calculation of renumeration for these 3 dates only.

[10]Was the Claimant’s union a recognised union? Evidence 4. We were provided with an agreed electronic bundle of documents consisting of 1436 pages, and further documents which were introduced during the course of the hearing; and a bundle of witness statements containing statements from Debbie Lambshead, Carl Trainor, Kastriot Gashi and Angela Ryder for the Respondent and a statement from the Claimant each of whom gave evidence and were cross examined. Findings of fact 5. We find the following facts as far as they're relevant to the issues we had to determine. 6. In around April 2012 the Claimant was elected as a health and safety representative whilst employed as a bus driver for First Capital. In 2013 the Claimant’s employment had transferred to Tower Transit. In 2015 he was elected as the shop steward. He remained as the elected shop steward until the TUPE transfer to Go Ahead in May 2021 when he transferred to a branch with an existing elected shop steward in place. Throughout his time as a shop steward the Claimant was paid 10 hours per day on the days when he was stood down for trade union duties. 7. The Claimant’s duties as a representative included, but were not limited to, attending monthly meetings with the health safety and environment committee, investigating complaints raised by drivers, carrying out bus inspections and risk assessments, as well as any investigation requested by the union, attending pay negotiations, TUPE consultations and general representation of members. 8. Up until the TUPE transfer to Go Ahead the Claimant did not have any issues with making requests to be stood down: he would approach his manager to inform them that he wanted to be stood down and he would typically be stood down for a full day. 9. On around 1st of April 2022, after the transfer to Go Ahead, the Claimant was elected as both a union safety representative and shop steward for Unite at the Go Ahead depot at Henley Rd. Go Ahead recognised Unite the union. 10. On the 10 March 2022 Mr Gashi sent an e-mail to the trade union committee setting out the current stand down arrangements for shop stewards which included Friday one day each week as Members’ day for shop stewards to meet with their members.

[11]The Claimant’s evidence, which was not contested, was that in every other bus company across London Members’ day was one full day for shop stewards to meet with their members, but at Go Ahead the company also scheduled their trade union meeting with management in the afternoon on a Friday, which came out of the stand down time, leaving half a day for members and the afternoon for the management meeting.

[12]Mr Gashi’s e-mail of the 10 March 2022 states that the operational manager will inform the Shop Stewards of any other arrangements -there were no other written documents about the arrangements before us. Mr Gashi accepted in evidence that he did not have written documents and did not send the Claimant any policies or inform him of any practices in response to an e-mail sent by the Claimant to Mr Gashi on the 5 July 2022 requesting, “any and all information regarding your company practices and agreed stand down arrangements”, pointing out that he did not recall having been provided with them.

[13]We find as a fact that the Claimant believed and understood that if he was to attend a trade union meeting he was entitled to 1 day’s stand down based on his experience of 10 hours stand down regardless of the length of the actual meeting. This was understood to be in order to allow time for preparation and consultation with members before any meeting took place. It was accepted that, as noted above, the Claimant had one day per week, that is Friday, stood down for trade union duties- including to consult and meet with members. The Claimant’s evidence was that on each occasion since April 2022 when the trade union had called a meeting he had been stood down for the whole day.

[14]The Claimant accepted that for other shop stewarding duties, including attending meetings with members in relation to their sickness absence, or grievance or disciplinary, he was initially stood down only for the duration of the meeting. However, after the initial few meetings when he was attending with members, he explained to his managers that he needed to be stood down before the meeting in order to prepare, and we accept that in fact after the first few occasions he was stood down for the whole day when he had to attend such meetings with members.

[15]The Respondent’s submissions (at paragraph 13) accept that there had been some issue about the length of stand down when the Claimant was required to assist members with disciplinary and grievance hearings but that he had resolved this with issue with Mr Trainor and was paid for the duration of those hearings and meetings. We accept the Claimant’s evidence that the resolution included being stood down in advance of those meetings in order to prepare when necessary.

[16]The Claimant maintained that it was custom and practice that he be stood down for a whole day whenever there was a union meeting (see his statement at paragraph 9), the Respondent disputes this and maintain the first it heard of this practice was in the Claimant’s witness statement.

[17]We find the Claimant’s witness statement was not the first time that the Claimant had asserted this practice, this assertion underpins his breach of contract grievance which he brought on the 8 November 2022. We accept the Claimant’s evidence that his experience and the previous practice was that he would be stood down for the whole day and paid for 10 hours.

[18]We find that none of the advice he was given either by Mr Gashi or Mr Trainor, or indeed anyone else, in respect of his allocation of stand down time explains clearly the practice for ad hoc meetings. The Respondent says the Claimant is entitled to 8 hours 15 minutes for a whole day and not ten hours, which was the pay for a normal shift.

[19]We are satisfied the Claimant was of the clear understanding that he would be allowed one day for trade union duties: he points to terms and conditions in place prior to the TUPE transfer to the Respondent which make reference to 10 hours per day for officials elected before 2017. He relies on that as a term incorporated into his contract and further relies on custom and practice. The Respondent asserts that this is not their custom and practice. 20, As we have already found above, the Claimant asked for copies or details of the policies and arrangements at the Respondent but was not provided with them -the only document he was provided was that of the 10 March 2022, which we find is consistent with representatives being allocated one day for trade union meetings.

[21]Mr Trainor, in answer to a question from Tribunal Member Mr Webb accepted the Claimant could think that stand down for trade union duties was one day based on his previous experience. We find, however, that the Claimant did not transfer to the Respondent as the trade union representative; he was elected to a new branch committee in 2022. His belief that he was entitled to one day stand down and pay of 10 hours for attending trade union meetings was based on the past practice and his experience as a shop steward before the transfer.

[22]The Respondent’s witnesses were clear that the practice at Go Ahead was that the representative was only paid for the time at the meeting and only otherwise if it was authorised. The Respondent did not take steps to bring their own practice to the Claimant’s attention in clear and certain terms. Ms Lambshead suggested that the Claimant should know what the practice was from his prior experience but accepted that his experience was that he would be paid for 10 hours. She also accepted that Mr Gashi’s e-mail refers to allocating 1 day on Fridays for trade union duties.

[23]We find there is no clear evidence of what the Respondent’s practice was at the time, or of them bringing it to the Claimant's attention despite his clear request. We find that the Respondent is now seeking to rely on their own ambiguity to the Claimant’s detriment.

[24]The Claimant’s contract is silent on the matter. Mrs Lambshead’s evidence [witness statement, paragraph 10] was that where the stand down is unscheduled that it must be agreed with local management. The Respondent suggested that the answer is that the Claimant was told he should ask his more senior trade union official.

[25]The Claimant’s submission was that the terms and conditions came over with him as he had transferred, however we have found that the Claimant was not in fact transferred as the elected trade union representative, he was elected as the new Branch Representative after the transfer; we find this was a post 2017 election.

[26]The onus is on the Claimant to establish evidence of the custom and practice he relies upon. We do not find the document relied on by him bears the meaning that he seeks to ascribe to it: he was not transferred as an elected representative elected pre- 2017. We are satisfied that the Respondent's practice was to pay for stand down for the time of the meetings and any necessary preparation. We do not find that the Claimant has established the practice of being entitled to 10 hours stand down incorporated into his contract. Unauthorised deductions from wages claim

[27]Section 13 ERA 1996 materially provides: 13. Right not to suffer unauthorised deductions.(1) An employer shall not make a deduction from wages of a worker employed by him unless- (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or…

(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised- (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

[28]Section 27(1)(a) ERA 1996 provides that “wages”, in relation to a worker, means any sums payable to the worker in connection with his employment, including any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise.

[29]The Claimant’s claim was put as follows: First, the Claimant was entitled to 10 hours’ pay for any trade union stand down time, and he was stood down for that day; Alternatively, the Respondent’s practice and custom was to pay the Claimant for a full day of work when he attended trade union meetings, and should have done so on this occasion. Conclusion on unlawful deduction from wages

[30]We do not find there was an unlawful deduction of wages in respect of 19 July 2022. We accept the Respondent’s submission that the Claimant’s wages for the first half of his shift on 19th July 2022 did not became payable under his contract or by custom or practice we do not make an award under s24 ERA. However we have found the amount is payable under the 1977 Regulations which we come to next. 2. Detriment for making Health and Safety Disclosures – s 44 ERA 1996

[31]Section 44 ERA materially provides: Health and safety cases(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that- (a) …. (b) being a representative of workers on matters of health and safety at work or member of a safety committee- (i) in accordance with arrangements established under or by virtue of any enactment, or (ii) by reason of being acknowledged as such by the employer the employee performed (or proposed to perform) any functions as such a representative or a member of such a committee, Safety Representatives and Safety Committees Regulations 1977 Reg 4 Functions of safety representatives (1) … each safety representative shall have the following functions – (a) to investigate potential hazards and dangerous occurrences at eh workplace (whether or not they are drawn to his attention by the employees he represents) and to examine the causes of accidents at the workplace; (b) to investigate complaints by an employee he represents relating to that employee’s health, safety or welfare at work; (c) to make representations to the employer on matters arising out of subparagraphs (a) and (b) above; …

(2) An employer shall permit a safety representative to take such time of with pay during the employee’s working hours as shall be necessary for the purpose of (a) Performing his functions under s 2(4) of the 1974 Act and paragraph (1) (a) to (h) above ; … In this paragraph “with pay” means pay in accordance with [Schedule 2] to these regulations Schedule 2 - Where pay does not vary with the amount of work done As if he had worked for he whole of that time - or where pay varies with amount of work done an amount by reference other average hourly earnings for that work Further

Findings of fact

[32]The events giving rise to this claim took place during the period of the extreme hot weather in July 2022. On 18 July 2022 the Claimant reported a red warning light whilst he was driving a bus: he had concerns about how his report of that red light was dealt with at the time and his understanding that he was being told to continue driving the bus despite the warning sign. He reported the incident to his operations manager Carl Trainor on the 18 July 2022, having informed Ibus about the warning sign and being told to drive back to the terminus at Canning Town.

[33]The Claimant followed the matter up later that day with a further e-mail to Carl Trainor, as he had received several calls from a number of drivers stating they were having the same issue with the red warning light appearing on the bus; they reported that the advice they received from Ibus was not coherent and it was clear they were not aware of what was causing the sign to appear. The Claimant referred to recent reports in the media of buses catching fire and asked to be stood down in order to conduct an investigation under his responsibilities a health and safety representative (see pages 325 and 329, the e-mail at 329 was sent at 5:57 pm).

[34]In the meantime Mr Trainor had received an e-mail from management asking him to stand down trade union reps if they wanted to attend an emergency meeting called for the following afternoon to address issues arising from the extreme weather conditions. Mr Trainor told us that he had spoken to the Claimant at about 2:50 pm on the 18 July and the Claimant had told him he wished to attend the trade union meeting on the 19th. Mr Trainor accepted there had been no discussion as to whether the Claimant would be stood down for the whole or just part of the day.

[35]The Claimant told us he thought the trade union meeting superseded his request to be stood down for the investigation he wished to carry out. Mr Trainor, for his part, thought it more sensible to sit down with the Claimant later in the week to discuss the issues with the red lights on the buses once they had some further information from engineering (see page 327). We are satisfied that by the time he spoke to the Claimant Mr Trainor had seen the e-mail from Trevor Johnson addressed to all operational managers [page 1409] sent at 11:21 on the 18 July asking them to make their representatives available for the duration of the meeting on the 19th. Mr Trainor had passed it on to his team suggesting it was “Not a full stand down, maybe the last rounder if needed”, last rounder meaning the end of the day [page 1409]; this was sent to Diana Vocoff at 11:49 who was the Senior Garage Administrator.

[36]The Claimant attended work at 6:25 am on 19th July and had a brief conversation with Diana Vocoff asking her if she was aware that he was due to attend a trade union meeting that day. She told him that she had not had time to deal with that request and the Claimant told her he was going to Canning Town to speak with members. Ms Vocoff told the Claimant that she was marking him as absent. The absence notification was later approved by Mr Trainor [332].

[37]At 8:00 am on 19 July Mr Trainor emailed the Claimant to inform him that he has been alerted by the team that the Claimant had told Diana to cover his duty today for union work [333]. Mr Trainor states in his email there was “no planned day today so you should be on your driving duty”, referring to it not being a scheduled meeting or Members’ day. He also referred to the Claimant; “trying to get buses to not leave the yard due to air con not working, which you know is not a valid reason” Mr Trainor then refers to steps taken “to cater for the well-being of staff for example water –• Water bottle that can be filled up at home or at work

• Allowing T-shirts/ shorts to be worn

• Breaks if needed

• Communication guidance {Like freezing water bottles so they have cold water) We have done all of this, so I'm not sure where today's issues came from. As this was not a planned or authorised working day you've been marked as Absent. I could not find you in the garage, so I'm not sure where you are, which is why I emailed you.”

[38]The Claimant responded at 10:19 am [334]. He accepted he could have been more polite with Ms Vocoff; he told us he had in fact gone back and apologised to her and Mr Trainor had accepted this [see 335]. However the Claimant disputed in his e-mail that the company was doing enough he said that was “clearly not true”, he pointed out that, “Providing refillable bottles with nowhere for drivers to top up is not acceptable. There are still no cups for drivers to drink water at the garage. There is no drinkable water at Canning Town. I have spoken with the station controller this morning regarding the state of the facilities. There is no A/C or ventilation at Canning Town, No drinking water. And the place needs a deep clean. Credit to the station controller he has just got someone down from facilities management and they will fix the issues her. In the meantime, I need to let the company know that they have a legal obligation that if they provide facilities the facilities need clean drinking water this is the company's responsibility not TfL. I will be spending the day at Canning Town safeguarding their health and well-being of my members and advising them of their legal rights. What I expect is for the company provide and send drinking water to the garage and Canning Town.”

[39]The Claimant returned to Henley Rd at lunchtime. He spoke to Mr Trainor and confirmed he was had been at Canning Town with members in the morning. The Claimant was marked as absent for the entire day [333]

[40]We find that the Claimant was marked absent on the 19th of July because he went to Canning Town to carry out duties as trade union health and safety representative: he also informed the Respondent that he would be attending the trade union meeting in the afternoon.

[41]We are satisfied the Claimant believed or understood that he was entitled to take the whole day as a result of that meeting; however we also find that by midmorning, at about 10:20 am, he had informed Mr Trainor that he was carrying out health and safety duties safeguarding the well-being of his members in the circumstances of the extreme heat wave. We find that he was dealing with urgent checks, in particular issues in respect to availability of drinking water and the effects of the heat.

[42]On 21 July 2022 the Claimant emailed Mr Trainor asking why he was still marked absent for the 19th [336] he sets out what he was doing and why it was urgent, stating: “… If you recall, I had requested a stand down to do my health and safety checks. Due to the exceptional weather and circumstances, I couldn't provide you with a longer notice period. Now I know on the day there could have been better communication from myself to the company but under the circumstances I had to do what was necessary. You were fully aware I was out doing health and safety welfare checks on union members making sure the facilities were checked etc. I was also the one who spoke with the TfL station controller at Canning Town after which he provided and offered much needed water to drivers. Had I not done this there was a possibility that more drivers would have gone off than did.”

[43]The Respondent accepts that the Claimant was a health and safety representative at the relevant time and as a result he had the right under the Safety Representatives and Safety Committee Regulations 1977 to undertake activities under those regulations.

[44]The Claimant relies on section 44(1)(b) of the Employment Rights Act 1996 that he had reasonable grounds to conduct health and safety investigations with regards to the conditions created by the heat wave in July 2022 and as a result was subjected to two detriments namely being underpaid on the 19th July 2022 and being refused further time to conduct health and safety investigations. Was the Claimant carrying out his function as a health and safety Rep when he attended Canning Town depot on the 19 July 2022?

[45]We took into account that on 19 July 2022 London was experiencing a 40° heatwave, the drivers were operating buses in extreme weather and some were in heated cabs. It was accepted that at least one driver had fainted and another had also fainted to the Claimant’s knowledge. The 19 July was the hottest day ever recorded in the United Kingdom at that time– with temperatures of 40° . We are satisfied that the Claimant’s assertion that it would be hotter in the drivers’ cabs is likely to be correct and we find that context, in these circumstances, is key to the urgency and in considering the reasonableness or otherwise of the Claimant’s actions.

[46]We accept that the Claimant believed the company was not doing enough to ensure the health and safety of drivers: he had received complaints and concerns about the heat and its effects from drivers; he was aware of the general steps taken by the company but considered they were not enough in the circumstances; his concerns were amplified by his awareness that there was no shade in the garage, there were problems with the air conditioning on some buses and buses were overheating; that there was a genuine fear amongst drivers of buses catching fire - there had been media reports of a recent incident of an electric bus catching fire although not one operated by Go Ahead), which was referred to in the documentation before us. Mr Trainor also acknowledged that the drivers had genuine fear or concerns in respect of their buses catching fire.

[47]The Claimant raised the issue of there being no drinking water available at Canning Town, which is where the vast majority of the drivers took their breaks; there was nowhere to fill up water bottles or refreeze them during the course of their duties; and the only water source available to them was at Canning Town; there was no air conditioned facilities for them; that the advice about taking frozen water bottles was not sufficient for those drivers who were out on their runs.

[48]We are satisfied that the Claimant was acting in the exercise of his responsibilities as the health and safety representative and in response to concerns raised by members in light of the extreme conditions. He was concerned that the company’s agreed steps were not sufficient to deal with those extreme conditions and that the welfare and health and safety of his members was at risk.

[49]We find that the Claimant went to Canning Town in the morning of 19 July 2022 to investigate health and safety hazards and potential dangerous occurrences and that he was entitled to investigate the urgent complaints raised by the employees he represented. He informed Mr Trainor that he was carrying out these checks [336].

[50]We are satisfied that this falls within the term investigation: he was investigating whether there was drinking water available, whether the mitigation steps in place were effective and whether the facilities were safe. We accept that the Claimant was conducting a bona fide investigation for those reasons. We asked ourselves whether that was reasonable and find that it was reasonable for him to do so in the circumstances. We find that the Claimant had good reason to believed that no-one from the management side was grasping the issue until the Claimant directly raised it with them and that what the managers had conducted was a paper exercise, whereas the reality on the ground was that drinking water was not available and water bottles had not been provided to a large number of drivers. We accept that the Claimant was acting in response to the extreme circumstances and that there was urgency as a result. We find that he reasonably believed what he did was necessary in the circumstances.

[51]We referred to regulation 4(2) an employer shall permit a safety representative to take such time off with pay during the employee’s working hours as shall be necessary for the purpose of a performing his functions under Section 2 (4) of the 1974 Act ,and paragraphs 1 a-h above, which includes - a) to investigate potential hazards and dangerous occurrences at the workplace (whether or not they are drawn to his attention by the employees he represents) …; b) to investigate complaints by an employee he represents relating to that employee’s health, safety or welfare at work.

[52]We are satisfied in the circumstances, given what he was investigating, the Claimant could only properly investigate the hazard/ complaints on the day in question, it would have been no good investigating the next day, when the harm would have been done. We find that the Respondent did not permit the Claimant to take this time off as necessary: it marked him as absent despite having been informed what he was doing. We find that the Respondent ought to have permitted him to carry out his duties by retrospectively not marking him as absent and by paying him. We are satisfied that the steps the Claimant took were appropriate given what he knew about the conditions and facilities, and that he took steps to ensure that the facilities or provision was in place as far as he could on the day in question, for instance speaking to the station controller to get him to arrange for water etc to be provided. Conclusion on being marked absent on 19 July 2022 Issue 6 a

[53]We find that the Claimant was underpaid half a day because he had gone to Canning Town in the morning to investigate potential hazards and complaints by drivers he represented. Issue 6 b

[54]We also find that the Claimant was marked absent for the whole day for the same reason. We are satisfied this amounted to a refusal of time off on 19 July 2022. We find that marking the Claimant absent and not paying him for the whole of the 19th of July was a detriment.

[55]The Respondent knew the Claimant was at Canning Town in the morning and knew he was there carrying out trade union and health and safety duties on the 19 July 2022. It also knew that the Claimant was attending an urgently arranged meeting of trade union representatives in the afternoon. The Respondent could have rescinded the absence marking and the consequent non payment of wages. We find that the failure to do so was a failure to give effect to regulation 4(2) of the 1977 Regulations. We are satisfied it was necessary for the Claimant to take off the relevant time in the morning of 19 July 2022 to investigate on that occasion.

[56]We are therefore satisfied that the Claimant is entitled to a declaration under Regulation 11 that his complaint was well founded; and under regulations 3 and 4 he is entitled to the balance of the day's pay. The amount due being £83.00, half of the day's pay having been reinstated already as a result of the Claimant’s grievance.

[57]We find that the grievance turned into a quasi-disciplinary at which the Claimant’s actions were questioned and he had to justify himself. We are satisfied that the Claimant had a justified sense of grievance for the period between being marked absent and therefore being told he would not be paid for 19th July, and the date on which his appeal was upheld by Ms Ryder when his half day’s pay was reinstated. 6b the alleged refusal of further time to conduct health and safety investigations

[58]The Claimant also asked for time off on two further occasions, namely the 26 July 2022 and 3 August 2022, to investigate issues which had arisen in the course of the heat wave and had asked the Respondent to provide him with information in order for him to conduct this investigation. Was the Claimant refused time off to conduct for his health and safety investigations on the 26th of July , if so what was the reason?

[59]The Respondent says that he was not refused the time off. The Claimant’s evidence was that he requested time off at the health and safety meeting on the 26th of July 2022. Mr Gashi’s evidence was that he did not refuse the request for time off on that occasion, he was trying to ascertain what the time off was requested for and what the objective was [1067].

[60]The Claimant did not request a specific time or date for the time off to be given in his initial request for time off (see page 1077). We do not find there that the refusal to grant the Claimant’s request for time off was a detriment in response to his action on 19 July 2022. 3 August 2022

[61]In respect of his request for time off on the 3rd of August 2022 the Claimant relied on his e-mail on the 29 July 2022 [1078]. In this e-mail to Mr Gashi he stated, “I would appreciate if you could facilitate sufficient time for me next week preferably Tuesday and Thursday so I can speak to members who have raised concerns and go through all the information you have provided and hopefully I can an update yourself and the company next Friday before I go on annual leave.”

[62]The reason for the refusal is at page 1079. Mr Gashi refused the request because he did not feel it was made on reasonable grounds; in essence he did not think it was a reasonable request to investigate the matter further because he believed the company had already done enough. We are satisfied that was the genuine reason for refusing the request and it was not in response to the Claimant taking himself off duties on the 19 July 2022.

[63]We have not found that this refusal was a detriment as a result of the Claimant’s actions relied on as set out at issue 5 a-c of the List of Issues. Time off for carrying out trade union activities pursuant to sections 168, 169, and 170 of the Trade Union and Labour Relations (Consolidation) Act 1992. Time off for union activities s 168 (3) provides that the amount of time off is such that is reasonable.

[64]On 19 July 2022 the Claimant took time off in the afternoon to attend a trade union meeting. The Claimant’s request for time off made in his e-mail on 18 July did not specify the date, but Mr Trainor accepted in evidence it was obvious his request was for the next day. The Respondent accepts that the Claimant did request time off for purposes covered by section 168, he made the request a day before taking the time. We have already found that the Claimant had assumed he was entitled to the whole day off for trade union duties in any event. The Respondent did not grant the whole day based on its own practice of only granting the time required for attending the relevant meeting. We have found, for the reasons given above, that the Claimant was entitled to take the morning for his health and safety investigation and in the afternoon he should have been stood down and paid in respect of the urgent meeting which had been agreed between trade union and management.

[65]We are satisfied that the reason the Claimant was not paid for that afternoon was because he had gone to Canning Town in the morning and absented himself for the whole day. The Claimant was eventually paid his pay for the afternoon, but only after he had had to lodge a grievance and an appeal. It was not until the appeal hearing that his half day’s pay was reinstated by Ms Ryder.

[66]The Claimant was carrying out trade union duties which had been agreed between management and the union. An emergency meeting had been arranged to address the effects of the extreme heat and managers had been requested to make their trade union representatives available. We have found that the failure to pay him for the afternoon of 19 July 2022 was a detriment for having undertaken his activities in the morning. The Claimant was paid for the afternoon after his grievance appeal and that amount was not outstanding but the time of this hearing but we find he had to go through a grievance and an appeal in order to be paid. Subsequent requests for time off 26 July 2022

[67]In respect of the request for time off made on 26th of July 2022 we do not find that his request was denied. We are satisfied Mr Gashi was trying to ascertain what and how much time was being requested; it was not unreasonable for the Respondent to satisfy itself of those questions. 3 August 2022

[68]On 3 August 2022 the Claimant asked for time to go through the paperwork that had been provided. Mr Gashi accepted that there were some 700 pages of documents provided to the Claimant. Ms Ryder accepted in her evidence that it would have been reasonable to give him some time off to go through those documents given that they had been generated as a result of the Claimant’s requests for information in relation to conducting his investigation. The Claimant had suggested two possible days, that is either Tuesday or Thursday, to go through the information and those had been refused. He did produce a report on 20 September 2022 having gone through the information in his own time [1101 to 1104].

[69]The Claimant made a request for reasonable time on the 22 July 2022 [343 to 345]. Mr Gashi refused his request for paid company time, the reason given for the refusal [1080], was that the request was not based on reasonable grounds. Mr Gashi felt the company had assessed and taken reasonable and effective steps to manage the weather conditions he so did not feel there were reasonable grounds to provide the Claimant with paid company time [to go through the information and produce a report].

[70]We find however, that having provided the Claimant with the documents in response to his request it would have been reasonable for him to have been given time to go through the information and produce his report. We find that the production of the report was a function of his health and safety representative responsibilities. The Claimant had requested 2 days to go through the information and discuss its contents with members before the next health and safety meeting so that he could report back at that meeting. We are satisfied that this was a reasonable request in the circumstances; it was not an unreasonable request simply because the Respondent had taken a view that they had done enough, that is Respondent substituting its view for that of the health and safety representative.

[71]The Claimant told us and the Respondent accepted that seventeen of their drivers that absented themselves on the day in question; half of those had their pay reinstated as a result of grievances in which they asserted they had absented themselves due to health and safety reasons. We are satisfied there clearly were genuine and valid concerns at this depot, whereas across the other Go Ahead garages only 24 drivers in total had absented themselves.

[72]The Respondent’s rationale for the refusal to grant the facility time was their view as to the reasonableness of the actions taken by the Respondent in respect of the effects of the extreme hot weather conditions. We are satisfied that if an employer could refuse to allow a health and safety representative facility to investigate on this basis i.e. its own view as to the appropriateness of the steps or measures it had put in place, this would effectively emasculate the provisions and the function of the health and safety representative in investigating concerns raised by members or occurrences in the workplace. Issue 8 was the time requested reasonable pursuant to s 168 (3)?

[73]We asked ourselves what would be a reasonable amount of time off in the circumstances. We only have the Claimant’s evidence on how long he spent in carrying out his investigation and report. He completed the report in his own time and we find that it is likely that he only did what was reasonably necessary. He read through the voluminous amount of information provided, we were told it was some 700 pages and produced a detailed report setting out a number of areas where the Respondent had not taken to sufficient steps to safeguard the health and safety of its drivers. His report made a number of recommendations to address the likely recurrence of extreme weather conditions and pointed to the fact that the Respondent’s risk assessments had not been adequate. He identified a number of alleged failures and raised a number of areas for discussion pointing out that there were lessons to be learned. We are satisfied that the Claimants’ actions were reasonable in the circumstances and that the time spent is likely to have been two days as he claimed. Renumeration under s 169

[74]It was not disputed that the Respondent has not renumerated the Claimant for the time he spent in considering the information and preparing his report. We had regard to s 169(2). We find that during that the Claimant was carrying out his functions as the health and safety representative in reviewing the material provided, analysing it and providing a report to be considered at the next health and safety meeting with management.

Award

[75]We find two days is a reasonable time and make an award of two day’s pay at the daily rate of £166.00. Injury to feelings award for being subjected to a detriment

[76]We went on to consider an injury to feelings award in respect of the detriment to which we found the Claimant had been subjected. We accept the Respondents’ submission that it should fall within the lower Vento band. The Claimant was denied his pay and he was marked absent on a day when he was legitimately carrying out his functions as the health and safety representative and as a trade union shop steward. He had to bring a grievance and an appeal before he had half of his pay reinstated. We have found that the grievance hearing had some characteristics of a disciplinary. We find that the Claimant had been put through unnecessary aggravation as a result which could have been resolved had a more constructive and reasonable approach being taken by the Respondent. The Claimant was left feeling that he had to move on and he requested a transfer to different depot. By the time of this hearing he had transferred from Go Ahead to Stagecoach. He transferred on 16 September 2023. We are satisfied that his transfer request was largely in response to the way he had been treated and the detriments we have found as a result of his actions as a health and safety representative.

[77]We accept that during the period from July 2022 through to September 2023 the Claimant had genuine feelings of hurt, upset, and stress as a result of his treatment by the Respondent. We consider that the sum of £5000 is a just and appropriate award to reflect the injury to his feelings in the circumstances.