Mr M O’Shea v London and North Eastern Railway Ltd: 6016223/2024

EMPLOYMENT TRIBUNALS

Case No 6016223/2024

Between

Mr M O’SheaClaimant

London and North Eastern Railway LtdRespondent

Before

Employment Judge Miller

Date 4 November 2025

JUDGMENT

[1]The claimant’s complaint under section 168 Trade Union and Labour Relations (Consolidation) Act 1992 that the respondent failed to permit the claimant to take time off during his working hours for the purpose of carrying out trade union duties is well founded and succeeds.

[2]We make a declaration that the respondent failed to permit the claimant to take time off during his working hours for the purpose of carrying out his trade union duties on 15, 16, 17, 18 and 19 July 2024 and 12, 13, 14, 15 and 16 August 2024.

[3]The complaint under section 169 Trade Union and Labour Relations (Consolidation) Act 1992 is dismissed

[4]The respondent made an unauthorised deduction from the claimant’s wages in respect of pay for the weeks commencing 14 July 2024 and 11 August 2024.

[5]The respondent shall pay the claimant the sum of £3027.50 subject to any deductions for tax, national insurance or pension contributions. Case number: 6016223/2024

[6]We make no separate award of compensation under section 168 Trade Union and Labour Relations (Consolidation) Act 1992 JUDGMENT having been sent to the parties on 6 November 2025 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the Tribunal find provide the following:

REASONS

[1]The claimant is employed by the respondent as a train driver and has been for many years. He is also a long-term trade union member and representative for the union ASLEF. This claim is a claim of a failure by the respondent to permit the claimant time off for trade union duties under section 168 of Trade Union and Labour Relations (Consolidation) Act 1992 and a claim for unauthorised deductions from wages under section 13 of the Employment Rights Act 1996.

[2]The claim relates to two weeks in July and August 2024. We make the following findings of fact. Where facts have been disputed we have made our findings on the balance of probabilities. However, it is fair to say there is not a great deal dispute in the actual facts, and we would like to record here that both Mr O’Shea and Mr Lyon are very helpful witnesses who were doing their best to help the Tribunal.

[3]On 21 April 2005 the claimant entered into a flexible working arrangement with the respondent for family reasons which provided, as far as is relevant: “your new weekly pattern will be as follows – six weeks unpaid leave between July to August on an annual basis”.

[4]We find that the claimant was told at that time by Mr Page, who was in the meeting in April 2005 but did not attend this hearing to give evidence, that he should arrange the specific weeks he wanted to take off each year with the roster clerk.

[5]Over the next 19 years that is what the claimant did. He would contact the roster clerk in May or June each year and tell them what his plans were for the allocation of the summer unpaid leave. Obviously, the unpaid leave did not cover the whole of July and August. There were about two weeks when the claimant was not on unpaid leave each year. Some years he would take normal annual leave and have the whole period off. Some years he worked for some of the period. One year he was available for work but was off sick.

[6]We find that the roster clerk was authorised to approve paid and unpaid leave within clearly defined parameters. There was a limit to how many train drivers could be off on any day although that limit was adjusted during the claimant’s unpaid leave period to ensure that the claimant’s leave allocation was not prejudiced. Other parts of driver leave was allocated centrally, and this was consistent across all the train drivers.

[7]In any event, however, the roster clerk did have the authority to approve the claimant’s unpaid leave days and any additional leave he wanted to take in July and August each year.

[8]In October 2023 the claimant was elected to the respondent’s Driver Company Council, the DCC. This is a committee that is part of the collective bargaining framework of the respondent. The DCC meets once a month every month. There is an agreement that employees elected to the DCC will be released from their duties for the week in which the DCC meeting is held to conduct all business related to that committee. It is agreed that in attending these meetings the claimant was undertaking union duties for an independent trade union recognised by the respondent and that the period of one week per month was a reasonable period for the claimant to undertake these duties. This was a jointly agreed arrangement that the union and the respondent were satisfied with.

[9]On 20 November 2023 Rab Wicksted, who is the secretary of the DCC, wrote to Paul Lyon and requested that DCC representatives be released for a series of weeks for 2024. This included the weeks commencing 14 July 2024 and 11 August 2024. Mr Lyon agreed in evidence that this included a request to release the claimant. That is to say, a request for permission that the claimant be released from his duties as a train driver in these weeks and instead be allowed to attend the DCC and undertake that and other union duties in those weeks. The request to be released was for the whole of each of those weeks.

[10]On 20 November 2023, Liz Kent forwarded the request to the relevant managers and roster clerks and said this – “it has been agreed for the release from duty of the Drivers Company Counsel’s representatives for block weeks for 2024 as listed below. Therefore please can you ensure that your Drivers Company Counsel representative is released and let me know that this has been arranged”.

[11]Mr Lyon was the person responsible for agreeing the release.

[12]We find that the respondent agreed for the claimant to undertake trade union duties in each of the weeks including the weeks commencing 14 July and 11 August 2024. This was further confirmed, if it was necessary to do so, by an invitation from Liz Kent to the DCC representatives, including the claimant, on 3 July 2024 to attend the DCC on 15 July.

[13]On 31 May 2024 the claimant sent his customary email to the roster clerk, Keith Raw, setting out the dates that he planned to take as unpaid and paid leave in 2024 and the dates he would be working, as well as some other leave requests. The claimant identified dates that he wanted to take as unpaid leave, dates he wanted to take as paid leave and dates when he said he would be working which he identified as “working CC”. It was agreed that Mr Raw would know this meant that the claimant was at work, but attending the DCC and undertaking associated trade union activities.

[14]Mr Raw replied on 3 June and said “everything is in the book and granted with the exception of 1 January which will need to go into the Christmas draw with the LLR.”

[15]It is clear, and we find, that Mr Raw must have properly considered the claimant’s request for leave and applied his mind to it before responding with the decision because he said he could not automatically have 1 January off.

[16]We find therefore that the claimant was expecting to attend work in his trade union capacity in the weeks commencing 14 July and 11 August on the basis of that email exchange.

[17]On 5 July 2024 there was then an exchange of emails between the claimant and Mr Lyon about a matter to be discussed or not as the case may be at the DCC. Mr Lyon concluded the first email about this that we have seen as follows “I understand you are now on your break from work for several weeks and I wish you a relaxing and enjoyable time and I will see you upon your return in September.”

[18]The claimant replied to say, as far as is relevant, “given the most serious nature of where we are currently in terms of the current industrial disputes and with the absolute necessity to find solutions, along with other pressing outstanding issues and also being the lead on ETCS, I have made myself available for Driver Company Counsel weeks and will attending (sic) in July and August. I look forward to meeting and getting some meaningful resolutions as soon as practicable.”

[19]Mr Lyon then replied to say “With the greatest of respect, you are now on extended leave and cannot simply make yourself available at your own request to attend DCC weeks as indicated. Normal process would be to co-opt a fellow representative from the same depot for periods of elongated absence or availability. Please do speak to the council chair and secretary as indicated to discuss this. I have copied in Gary as your Ops Delivery Manager and Sue from a people team perspective and both as DCC members for their awareness. For the avoidance of doubt Mick, my position on this matter is very clear, you are on extended leave and not in the workplace until the agreed date of your return and you will not be released for, or attending DCC meetings in this time frame. I hope this clarifies this matter.”

[20]This was the end of discussions between the claimant and Mr Lyon. The claimant attempted to raise it through the committee, but it was not resolved. The claimant continued to undertake trade union duties in those two weeks with his trade union colleagues but was not permitted to attend the DCC and was not paid for those weeks by the respondent. We find that the roster was amended afterwards to record the claimant as being on unpaid leave at the time. The base roster had clearly originally identified the claimant as working in those two weeks. We conclude that the final roster had been amended after the event to reflect what in the respondent’s view was actually worked by the claimant.

[21]We also find that Mr Lyon had no good reason for writing what he wrote in those emails. He had not checked with the roster clerk with the claimant or looked into the claimant’s flexible working arrangement to find out what the true position was. He just assumed that the claimant was off the whole of July and August because he had been off for all of that period in the last few years before them.

[22]There was thereafter a grievance process and the claimant’s grievance was not upheld. We do not need to make any findings about that. Law

[23]Section 168 the Trade Union and Labour Relations (Consolidation) Act 1992 says as far is relevant (1) An employer shall permit an employee of his who is an official of an independent trade union recognised by the employer to take time off during his working hours for the purpose of carrying out any duties of his, as such an official,

[24]It then goes on to list the matters with which time off is permitted which again we do not need to set out and then it says (3) The amount of time off which an employee is to be permitted to take under this section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS.

[25]Section 173(1) says (1) For the purposes of sections 168 [,168A] and 170 the working hours of an employee shall be taken to be any time when in accordance with his contract of employment he is required to be at work.

[26]We were not taken to any cases in respect of these sections and as far as relevant to this claim they speak for themselves.

[27]Section 13 of the Employment Rights Act 1996 says: (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 (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

[28]Wages are defined as the wages properly payable for the work done.

Conclusions

[29]The only issue in dispute in this case is whether the DCC weeks in July and August 2024 were the claimant’s normal working hours and specifically whether they were within time he was required to be work in accordance with his contract of employment.

[30]The claimant’s contract of employment requires him to attend work on his usual working days unless he has approved time off for leave, sickness and so on. This is modified in the claimant’s case by the flexible working arrangement which says that the claimant will have six weeks unpaid leave in July and August every year.

[31]The claimant is, therefore, required to attend work in the other two weeks in that period (July and August each year), unless he has applied for and been granted paid leave or he has some other authorised absence. The claimant arranges which of the weeks he attends and which of the weeks he has leave for as agreed at the outset of the flexible working arrangement.

[32]In May 2024 the claimant had made it clear that he was off work on a number of days but not the week commencing 14 July and the week commencing 11 August. In accordance with his contract therefore he was required to be at work in those two weeks.

[33]A request had already been made and granted in November 2023 for him amongst other representatives to attend the DCC in July and August 2024. The claimant did not need therefore to seek further permission from the roster clerk to be “released” for the purposes of his trade union duties, but it was in our view wholly appropriate for the claimant to tell the roster clerk that he would not be available to drive trains in those two weeks albeit that the roster clerk already knew that, as he had been a party to the November emails.

[34]By Mr Lyon’s emails of 5 July 2024 and the subsequent decision of the respondent allocating the two weeks as non-paid leave the respondent failed to permit the claimant to have time off in his working hours to undertake union duties. They did this by changing his pre-arranged working hours when he would have attended the DCC into unpaid leave.

[35]The respondent’s argument that the respondent was not required to permit the claimant to have time off in his working hours for these two meetings because they were not, in the event, working hours is wholly misconceived. The fact that the final version of the roster reflected the respondent’s view of what had happened – namely that the respondent had retrospectively allocated those periods as unpaid leave – is not conclusive evidence of all the surrounding circumstances.

[36]None of the other elements of the requirements of section 168 of the Trade Union and Labour Relations (Consolidation) Act 1992 are disputed and the claimant’s claim is therefore well founded and is upheld. We make an award (blow) in respect of the claim of unauthorised deductions form wages. No separate remedy was sought in relation to the claim under section 169, and we make no award in respect of that.

[37]It follows that the claim, if there is one, under section 169 Trade Union and Labour Relations (Consolidation) Act 1992 (the right to payment for approved time off) must be dismissed as Mr Tinnion submitted. The claimant was not paid for these days, but neither was he permitted time off from his work to undertake trade union activities. That claim (again, if there is one) must be dismissed.

[38]In respect of the unauthorised deduction from wages claim, the only question is what was the claimant entitled to be paid and was he actually paid that. There is no suggestion that any underpayment was authorised by contract or statute.

[39]The simple fact is that the claimant was ready, willing and able to work in the two weeks in dispute. He attempted to attend for the purposes of his proper union activities but was sent away. As Mr Tinnion said the fact that he was not rostered on to drive a train was wholly outside the claimant’s control. He tried to attend work in accordance with his contract and was refused. He was not in the respective two weeks on a period of unpaid leave.

[40]There has therefore been an unauthorised deduction from wages in the sum of £3,027.50 which is subject to the payment of any tax or national insurance.