Hairsine v Kingston Upon Hull City Council [1991] UKEAT 544_89_0907

EAT
Hairsine v Kingston Upon Hull City Council
[1991] UKEAT 544_89_0907 · 1991-07-09
MR JUSTICE WOOD (PRESIDENT) : This case concerns the proper interpretation of S.27 of the Employment Protection (Consolidation) Act 1978. This section is headed " Time off for carrying out Trade Union duties".It is common ground that public policy has decided that in the best interests of good industrial relations and in order to help and improve effective relationships between employers and trade unions there exists a joint responsibility to ensure that sensible arrangements for a reasonable amount of time off for trade union duties or activities should be maintained. The essential basis for such arrangements is reasonableness as is emphasised in the Code of Practice and no doubt particular attention will be given to the amount of time to be taken out of the employee's working hours. That will be clearly specified in order to permit the carrying out of those duties or activities as specified in the relevant provisions of the Employment Protection (Consolidation) Act 1978. The details of such arrangements are likely to vary widely but it must be obvious that the smooth working of such arrangements is to their mutual advantage. In some situations there may be full time shop stewards paid by the employer.Although time off for a purpose has a very general connotation, the meaning of the phrase "time off" for present purposes is to be found from the statutory provisions and has a limited meaning.The case for the Appellant, Mr Hairsine, is that the hours allowed as "time off" are to be in substitution for the equivalent number of hours which the Applicant would be contractually liable to work, and that he should be paid for those hours. They are hours in lieu of working hours.The Respondents argument is that the Applicant should be paid for those hours for which he has been given "time off" to enable him to attend the relevant activity under S.27(1)(a) or (b) and during which hours he would otherwise have been "at work".

The relevant parts of section 27 read:-

"S.27(1) An employer shall permit an employee of his who is an official of an independent trade union recognised by him to take time off, subject to and in accordance with subsection (2), during the employee's working hours for the purpose of enabling him - (a) to carry out - (i) any duties of his as such an official, which are concerned with negotiations with the employer that are related to or connected with any matters which fall within section 19(1) of the Trade Union and Labour Relations Act 1974 and in relation to which the trade union is recognised by the employer, or
(ii) any other duties of his, as such an official, which are concerned with the performance, on behalf of employees of the employer, of any functions that are related to or connected with any matters falling within that provision and that the employer has agreed may be so performed by the trade union; or(b) to undergo training in aspects of industrial relations which is - (i) relevant to the carrying out of [any such duties as are mentioned in paragraph (a)]; and(ii) approved by the Trades Union Congress or by the independent trade union of which he is an official.(2) 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 the Advisory, Conciliation and Arbitration Service under section 6 of the Employment Protection Act 1975.(3) an employer who permits an employee to take time off under this section for any purpose shall, subject to the following provisions of this section, pay him for the time taken off for that purpose in accordance with the permission -(a) where the employee's remuneration for the work he would ordinarily have been doing during that time does not vary with the amount of work done, as if he had worked at that work for the whole of that time; "Subsection (3)(b) is not relevant.(4) - (6) ...
"(7) An employee who is an official of an independent trade union recognised by his employer may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this section or to pay him the whole or part of any amount so required to be paid."
The only other provision to which we need refer is S.32 which so far as material reads:-

"32 Provisions supplementary to ss27 to 31A

(1) For the purposes of sections 27 to 31A 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.

(2) ..."

These provisions have as their origin sections 57 to 62 to the Employment Protection Act 1975. They are very similar if not identical. As a result of their introduction an ACAS Code of 1977 was drafted (there has been a recent review) and from the apparent absence of authority upon the issue we have been asked to decide, it would seem that co-operation from both sides of industry on these matters has been effective.The general guidance given in the ACAS Code of Practice (1977) is to be found in paragraphs 8 to 11 inclusive.

General considerations for time off arrangements

8. The general purpose of the statutory provisions on time off for trade union duties and activities is to aid and improve the conduct of industrial relations. These provisions apply to all employers without exception as to size or type of business or service. But trade unions should be aware of the wide variety of circumstances and the different operational requirements which will have to be taken into account in any arrangements for dealing with time off. For example, some employers face particular exigencies of production, services and safety in process industries. Others operate in the special circumstances of the small firm. In enterprises large and small the workforce may be fragmented. Proper regard will therefore have to be paid to particular operational requirements and obligations of different industries and services.9. Union officials and members may face particular problems of effective representation and communication, and employers in their turn should be aware of these. They may arise, for example, from the differing hours of shifts worked by members in a single negotiating area; from employment part-time ; from the scattered or isolated locations of work places and, particularly in the case of some married women, from domestic commitments which limit the possibilities of active participation in their union outside the workplace and outside the hours of normal day working.10. To take account of this wide variety of circumstances and problems, employers and unions should reach agreement on arrangements for handling time off in ways appropriate to their own situations. Subsequent advice in the Code should be read in the light of this primary point of guidance which ACAS considers fundamental to the proper operation of time off facilities. The absences of a formal agreement dealing specifically with time off for trade union duties and activities should not of itself preclude the granting of release.11. Employers and unions, at the appropriate level, will need to review jointly their current time off provisions bearing in mind the statutory requirements, this Code of Practice and the particular workplace circumstances. Where existing arrangements meet these requirements and are working to the satisfaction of both parties they need not be changed. In some situations time off arrangements will have to be revised and it may be helpful to set out any such revised arrangements in formal agreements."Since December 1986 there has in fact been a specified policy on the provision of time off for trade union duties and activities drafted and operated by the Hull City Council and recognised and accepted by the trade unions. In the introduction are to be found the following paragraphs -
"The Council reaffirms its acceptance of the ACAS code of practice in relation to time off for trade union duties and activities and will continue to apply the Code reasonably and sympathetically.
The Council will also continue to abide by all the provisions on time off contained in the appropriate national agreements."

Under "Conditions under which leave is granted" we find

"All leave of absence, whether with or without pay, will be granted subject to the exigencies of the service and under the following conditions:- (i) that prior permission of the relevant chief officer or his authorised representative shall be obtained before any time off is taken, provided that such permission shall not be unreasonably withheld.
(ii) ...(iii) Unless agreed otherwise employees must return to work for the remainder of the day/shift once the meeting is finished and attend work prior to the meeting. "

Under " Meaning for paid leave for trade union duties" the following appear -

"Paid leave is granted on a "no loss of earnings basis" and time spent outside normal working hours will therefore be unpaid. The following points are for clarification:- (i) ...(ii) An employee will be paid only for the hours when he would normally have been at work. No overtime payments will be made nor time off in lieu granted for time spent outside the employee's normal working hours.

(iii) ..."

By his Originating Application of June 1989 Mr Hairsine claimed that he had not been paid for 4 hours' work as he should have been under the provisions of S.27. The amount involved was £9.08 and the hours claimed were from 7pm to 11pm on 13th April 1989.Providing that the duties fall within S.27(1), as is not contested in the present case, it seems to us that the issues arising under S.27 divide into two. This is indicated by S.27(7) above, which raises two questions which an employee can bring before an Industrial Tribunal. The time limitation is 3 months as expressed in S.30(1). First, (and we paraphrase) has this employer been reasonable in the terms of the permission which has been granted for "time off" to attend a relevant course? Secondly, has he failed to pay the whole or part of any amount required to be paid under S.27?This case is concerned only with the second question, because the course which Mr Hairsine attended lasted from 9 a.m. until 4 p.m. (the equivalent of an 8 hour shift) and his case is that he is entitled to be paid for those 8 hours whether or not he attended in the evening. He considers that his attendance at work on that evening was purely voluntary.We understand this Industrial Tribunal to have approached this case in this way on the basis of the second question.If the issue had been whether the terms of the permission granted were reasonable it might be thought that part of the evening shift might have been excused. He might have been asked to attend until 7 p.m. for his special course as indeed he did. That, however, would not have altered the basic submission being made to us. He has been paid for 4 hours and claims payment of the additional 4 hours not on the basis that he was excused them which he was not, but on the basis that he is entitled to payment because he attended the course in the morning.Upon the facts of this case Ms Smith takes the view that it was unreasonable to have expected the Applicant to attend any part of his evening shift after attending training from 9 am to 4 pm and that this Industrial Tribunal should have investigated that matter and in so doing should have referred to the Code of Practice. If the Industrial Tribunal had thus decided that the Applicant should have been excused the whole of his 8 hour shift, he would have been paid for those hours and the present case would not have arisen. The requirement upon the applicant to return to work `after the meeting' should not have been applied to time off for a training course. Training falls under s.27(1)(b) not s.27(1)(a).The majority find it unnecessary to form any view on that matter as it was not in issue before the Industrial Tribunal. It was not the way in which the Applicant's case was or is presented.The Applicant has worked for the Respondents since January 1986. He is a pool attendant (swimming instructor) at the Ennerdale Sports Centre on the Sutton Road in Hull. His basic wage is £110 per week with an average take home pay, of £91. His basic working hours are 39 per week. He is a member of the Transport & General Workers' Union, a Trade Union recognised by the Respondents for the relevant purposes.Mr Hairsine is a shop steward and on occasions has been on training courses organised locally and on other courses run by his local Trade Union Headquarters. He has been allowed to attend these courses and there has been no obstruction in any way.He works a shift pattern during a normal week. For 6 days of the week when the Centre is open there is pattern of an early shift and a late shift, but on one day (Friday) there have to be different arrangements because it is very busy and there are three shifts, an early shift, a middle shift and a late shift. On the day in question Mr Hairsine was rostered on the late shift namely 3pm to 11pm. It was a Thursday.On 4th April 1989 the Regional Officer of the Trade Union, Mr May, wrote to the Respondents as follows -
"I write to advise you that Mr Neil Hairsine has been accepted to attend the Public Service Stage II Shop stewards' Course. Commencing for 12 consecutive Thursdays on 13th April 1989 at the HCFE."
By a reply dated 7th April the Town Clerk confirmed the permission for the day release with pay for the course and said -
"It is confirmed day release with pay will be granted where he would normally be at work (ie, rest days etc cannot be substituted)
Day release with pay is granted for attendance at all sessions of the course specified, otherwise nominees must report for work in the usual way ." (our emphasis)It is also pertinent to note that a member of the City Engineers Highways Department was not released due to the exigencies of the service.The 13th of April was the first day of the course and Mr Hairsine attended from 9am until 4pm in the afternoon. He then made arrangements to travel to the Ennerdale Sports Centre where he arrived at 4.40pm. He took a particular class in which he was interested and stayed at the pool until 7pm. He then went home. The Respondents have paid him until 7pm but have not paid him for the four hours from 7pm to 11pm, hence the problem which faces us.Mr Hairsine was dissatisfied with the decision not to pay him for those four hours and as a result Mr May on 19th April wrote to the Town Clerk; the letter includes the following -
"I have been advised by Mr Hairsine that the Ennerdale Sports Centre is refusing to pay him for release of the course on the grounds that they insist that he should finish off the evening shift, whilst he has completed the day's training at college.
I wish to advise you that under the Employment Protection (Consolidation) Act 1978 the hours being attended by Mr Hairsine on the agreed course are substitute hours for the work he would normally do for his employer. Therefore he is under no obligation whatsoever to have to attend work on any of the days that he has been granted release to attend the TUC training course."The two industrial members sitting with me have a substantial number of years' experience of the industrial scene dealing with these very issues and it is their considered view, taken with the background of the guidance from ACAS, that arrangements which have been made between employers, shop stewards and trade unions in connection with S.27 training have been highly successful, due in no small part to its total flexibility. It is almost impossible to seek to legislate for each and every permutation of facts and circumstances. Section 27(2) emphasises the approach of "reasonable in all the circumstances having regard to the provisions of the Code" . They emphasise that if the employer is not reasonable then the shop steward has a right to apply to an Industrial Tribunal and this emphasises the need for flexibility and for a reasonable approach to the problems that may arise. Moreover the wording of S.27(7) indicates that the issue before an Industrial Tribunal could relate to the amount of "time off" or to payment in respect of it or to both. This is the point which we have already made. They would also emphasise the absence of reported cases as some indication that the co-operation between management and trade unions has been sensibly maintained and is to be encouraged. This, in their view, is an area where confrontation has not emerged and where it should not be encouraged. The application of rigid rules has no place in this situation. The length of "time off" is not necessarily the same as the hours spent enabling the employee to attend a course. In considering reasonableness it must also be relevant to take into account not only the physical ability to attend, but also the importance of being able to benefit from the course itself. All these aspects would be relevant for an Industrial Tribunal if the issue was whether the terms of the permission granted were reasonable.In support of their understanding of the practice at present being effected we give the following examples:-(a)It has been the practice for many years for trade union courses to be arranged at the weekend so as to minimise the interruption of the work process. In this case seemingly there is no need to seek permission to take time off because it is not interfering with those hours when the employee should be "at work". However, there may be occasions when a shop steward is involved in weekend work. (b)There may be occasions when there is a short course in the morning and where an employee is on shift work. That course may extend over a number of weeks and his shifts may change. In those circumstances the shifts are often re-arranged so as to minimise the interference with the working hours of the individual. (c)If a course takes place on a Saturday at the other end of the country or abroad it may be reasonable and necessary that a shop steward is given time to travel on the previous day. He might be given time off on a Friday afternoon. If he is on shift work it may be reasonable to ask him to change to an early shift on that day so as to allow time for travel. (d)If a shop steward is on night duty it may very well be that he should be given a whole night off work so that he can sleep and attend his course on the following day. If the course lasts all day and finishes in late afternoon it may be reasonable to allow a second night off work because it could be considered dangerous if the employee fell asleep when working near moving machinery. (e)There may be occasions when there is the odd hour overlap one way or the other and an employer quite sensibly and reasonably does not require that hour to be worked. Indeed it may be taken up in travelling time. The Code of Practice envisages many different work places and patterns of work and it is impossible to expect that the hours spent on a course will necessarily take time out of the hours during which the shop steward is contracted to attend "at work". (f)The Applicant might have argued to an Industrial Tribunal that to expect him to work for the whole of the evening shift was unreasonable, but he did not do so.I am impressed by the approach of the industrial members, not only looked at from their own extensive experience but also from the history of the way that arrangements have in fact been made in practice. Since its inception there have been only a very few cases involving S.27 and none on this particular issue. I am also impressed by the fact that the present Respondents have been operating for some years under their Rules of practice which have been accepted by the trade unions involved.We are, however, bound by the terms of the statute. Is the approach of this Court as indicated above one which can fall within the wording of the statute? The Industrial Tribunal thought so and so do we."Time off" is effectively defined within S.27(1) as time "during the employee's working hours for the purpose of enabling him ..." to attend the course. Two conditions must be satisfied therefore. The first is that it must be part of his " working hours" , and secondly, that it must be permitted by the employer for the purpose of "enabling him to attend" the course. If it fails either condition it is not "time off" for which an employee is entitled to be paid. We emphasise again that the reasonableness of the terms of the permission are a matter for the Industrial Tribunal if there is any dispute.This view of the true meaning of "time off" is S.27(1) is in our judgment supported by the wording of S.32(1). If " working hours " were intended only to be those hours which he was contracted to work during any given day then the phrasing of S.32(1) could have been quite different. The phrase is that time when "he is required to be at work ". It seems to us clear therefore that "time off" means "those hours when he would normally have been at work and which it was reasonable that he should be allowed to take off in order to enable him to attend a course (Trade Union activities)" .Looked at in this way the present practice as it is understood by the industrial members to have existed for many years can be allowed to continue.Let us apply that to some of the examples given already. In each of the examples given arrangements would be sought to be made by agreement that the trade union activity should take place outside those hours during which the employee should be at work. It may be possible to change the working hours so as to minimise interruption with production or service. It may also be possible to change the shifts. However, it may also be necessary, for instance, in the case of night duty to grant "time off" for the whole of a night shift in order that the employee should be allowed some sleep, that is if he were on permanent duty and not merely on shifts. It might also be reasonable to allow some " time off ", perhaps one or two hours, from the end of a day's work if there was a substantial distance to travel. All these are matters for negotiation and for a reasonable approach from both sides. In the event of disagreement of what is reasonable to be permitted, the decision is one for the Industrial Tribunal. If an employee shop steward is going to need "time off" to enable him to attend then of course he must be paid for that time off.Turning to the facts of the present case it seems to us that it was made abundantly clear in the practice operated by the Respondents under their "policy on the provision of time off for trade union duties and activities" that the Applicant, Mr Hairsine, was going to be required to attend the evening shift after he had attended his course. There might possibly have been an argument that he should be allowed to arrive late for the evening shift as travel might have been difficult and he had clearly made special arrangements, but that is a minor detail. The case presented to the Tribunal was not an allegation that the terms of the permission were unreasonable, although Ms Smith takes the view that it should have been so presented, nor was that the way in which it was presented to us. The case presented to us is that all hours of a trade union course for which permission has been given are substituted for an equivalent number of hours for which the employee would have been at work and therefore not only is the employee automatically entitled to take the equivalent hours out of his work time but he is entitled to be paid for so doing. It seems to us in the present case that the Tribunal were entirely correct in reaching the conclusion that the hours between 7pm and 11pm on his evening shift were not hours for which permission had been granted for "time off" in order to "enable him" to attend the morning course. Those hours were not "time off" within the meaning of the statute and were not therefore hours for which he was entitled to be paid.As we have already emphasised one of our members is of the view that the terms of the permission granted were not reasonable. The majority however point out that this was not the issue raised before the Industrial Tribunal nor indeed before this Court. The tone of the decision of the Industrial Tribunal does not indicate that it would have viewed the permission granted in this way and indeed if it had thought that the issue should have been argued, there was nothing to prevent the Tribunal amending the application and allowing the issue of reasonableness to be raised. That issue would essentially be one for the Tribunal to decide.We are therefore unable to discern any error of law in the decision of this Industrial Tribunal and this appeal must be dismissed. Leave to appeal.