STC Submarine Systems v Piper [1993] UKEAT 7_92_1103

EAT
STC Submarine Systems v Piper
[1993] UKEAT 7_92_1103 · 1993-03-11
MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated 28th May 1991 Mr Douglas Piper brought proceedings claiming that he was entitled to paid time-off for training under the provisions of Section 27 of Employment Protection (Consolidation) Act 1978. The Notice of Appearance raised a number of defences which were considered by the Industrial Tribunal.The matter was heard at Southampton before a Tribunal under the Chairmanship of Mr Edwards on the 14th October 1991. The Tribunal made a declaration that the respondent Company, STC Submarine Systems Limited, had failed to allow Mr Piper paid time-off within the meaning of Section 27(1) and they awarded him a sum of £230 as just and equitable in all the circumstances. The Company appeal against the declaration.Section 27 of the Act was amended by the Employment Act 1989 and the amendment somewhat narrowed the provision. It replaced, in its wording, Section 57 of the Employment Protection Act 1975 and the phraseology, which was altered substantially, is the latter part of Section 27(1)(a)(i). We will refer to the exact wording in a moment, but the former wording was that the duties of an official:
"which are concerned with industrial relations between his employer and their employees."
The present wording which is relevant to this appeal is the following, under subsection (1) it reads:
"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 29(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). . . .(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."Thus the logical sequence of looking at subsection (1) is to examine for the purpose of enabling him [Mr Piper], to undergo training in aspects of industrial relations relevant to the carrying out of:
"(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 29(1) of the Trade Union and Labour Relations Act 1974 and in relation to which the trade union is recognised by the employer, or . . ."
It is conceded that the course which he wanted to go on, and this was a course run by his trade union in connection with pensions, and in particular the problems raised by the European Courts of Justice decision in Barber , was approved by his trade union and is equally conceded that the trade union, the Transport & General Workers' Union was recognised by the Company, so that issue can be refined thus: was the training relevant to the carrying out of Mr Piper's duties as Branch Secretary of the Transport & General Workers' Union which duties are concerned with negotiations which are connected with or relating to terms and conditions of employment and perhaps one can re-phrase duties, unless they are to be taken narrowly, as those functions which are incidental to his position as Branch Secretary. The question of whether the duties or the negotiations have to be directly between employee and employer or employees' representatives and employer's representatives was dealt with in the recent case of London Ambulance Service v. Charlton & Others [1992] ICR 773. That was a decision of this Appeal Tribunal and we decided there that the wording should be given a broad construction and that time spent on preparing for negotiations in connection with collective bargaining fell within the provisions of Section 27(1).The facts of this case fall within a fairly short compass and if we may say so are set out admirably succinctly in the decision. Mr Piper had been employed, and is employed, by the Company as a Cable Operator, he has been so employed since the 26th March 1962. For twenty-eight years he has been a shop steward of his Trade Union, and for twenty-eight and a half years he has been Branch Secretary. He in fact gave up his duties as shop steward at the end of 1990 but remained as Branch Secretary, and we note that the application for time off took place some three months into 1991. He has been elected to the Consultative Committee of the Company's Group Pension Plan and recently to the Committee of Management itself, he is also on the Board of Trustees. The Tribunal comment:
"The applicant's appointment to the Board of Trustees is apparently somewhat unique so far as a trade union member is concerned, and shows something of the confidence which is placed in the applicant and gives a hint of his expertise in pension matters."
Be that as it may he was elected to the Committee of Management. For a number of years it was only his own members who received the benefit of his advice, but he has, for some time, clearly been advising employees generally about their pension rights and he is acknowledged, as the Tribunal found, as something of an expert on the Company's Group Pension Plan. There had been an earlier occasion in 1986 when Mr Piper had wished to attend a Pension Course. He at that time was a shop steward, he was given the appropriate paid time-off for that purpose and no query had been raised on that matter. It is also right to point out, as Mr Griffith-Jones has pointed out, that the wording at that time was before the amendment by the 1989 Act.The Trade Union decided, possibly because of the recent complications caused by European Law, to follow up the 1986 Course with a more modern approach and indeed, we all know the difficulties that have been produced. By this time, of course, Mr Piper was Branch Secretary and no longer shop steward, he approached Mr Langran, the Personnel Manager for permission to have paid time-off to attend the Course, it was a three day Course. There was a difference of opinion about the initial approach but the Tribunal found that it was common ground that there was never a formal request in writing, nor any formal refusal in writing, the whole matter was conducted informally and on a friendly basis in view of the long association between Mr Piper and the Company. Mr Langran had asked for a copy of the syllabus, he had seen it, and Mr Piper of course, had to ensure that he had his place on the Course. Ultimately, he was refused paid time-off so he applied to have three days holiday and he went on the Course in any event. Thus that decision was reached after consultation with Head Office. So there was the issue. Mr Piper raised the matter through the normal channels, there was no agreement about it and so instituted his proceedings.The Industrial Tribunal approached the law and such documentary assistance as they could derive from the code in the following way. They set out Section 27(1) and they look at the ACAS Code of Practice, as it was at the time; they examine Section 29(1)(a) of the Trade Union & Labour Relations Act 1974 and they also look to see what is said in the new Code of Practice which came into effect in May 1991.

(a) of the 1974 Act namely:

"Terms and Conditions of Employment"

The Tribunal in its judgment refers specifically to paragraph 17 of the former Code. They say this:
"The position is less clear under the previous code although paragraph 17 of the old code refers to an official having `special responsibilities'."
This is mentioned in connection with the functions or duties of a Branch Secretary. They quote paragraph 17 and it reads as follows:
"An official should be permitted to take reasonable paid time off work for further training relevant to the carrying out of his or her duties concerned with industrial relations where he or she has special responsibilities or where such training is necessary to meet circumstances such as changes in the structure or topics of negotiation at the place of employment or legislative changes affecting industrial relations."
and then the Tribunal deal with the duties point and say in paragraph 24 this:
"We are satisfied that the applicant certainly did have special responsibility so far pensions are concerned and although he was not directly involved in negotiations with the respondents, he would certainly be involved as branch secretary in advising his own members, in advising the workforce generally and in advising his shop stewards in negotiations they may have with the respondents."
So that was the approach of the Tribunal on that first issue of the duties of the Branch Secretary, Mr Piper. Then when they come to the actual negotiations element they say in paragraph 25:
"We note that Mr Cross has submitted that the pension scheme was `not negotiable' and that there was no formal structure for negotiation about the pension scheme. However this appears to overlook the practicalities of the situation when a trade union must certainly take into account in any negotiations over pay and conditions what the pension rights are and whether it should recommend any alteration to those rights."
Mr Griffith-Jones has made two basic criticisms of the reasoning of the Industrial Tribunal. First he submits that the Tribunal did not ask itself the right question. It did not concentrate its mind on the phrase "the duties of [that is Mr Piper] as such an official" namely, qua Branch Secretary. Secondly, it did not relate the issue of negotiating for pensions with the wording related or connected with any matters within Section 29(1)(a) because pensions are not negotiable. The way in which he argued the first point was to look at those passages to which we have already just referred, and in particular paragraphs 23 and 24; he submitted that in failing to specify the duties qua Branch Secretary the Industrial Tribunal erred in law, they did not realise that the negotiating was not as a shop steward and indeed a shop steward had no negotiating role so far as pensions were concerned. Thus the Tribunal failed to have regard to the wording of Section 27 itself but were led astray by their reference to the ACAS Code and paragraph 17 in particular and the use of the phrase "special responsibility".It seems to us that the wording of Section 27 is not to be read narrowly, and indeed we took that approach in the London Ambulance [1992] ICR 773 EAT case. The phrase "special responsibilities" seems to us a useful one and indeed it tends to show that there may very well be functions which are part and parcel of the efficient carrying out of whatever position it was in the Trade Union which may not strictly fall within the word "duties". Indeed, "special responsibilities" is a phrase which has been repeated in the most recent Code. The form of the most recent Code is not identical with that of its former draft but it takes various phrases from the legislation and then comments on those phrases.

(b) , paragraph 17 reads:

"17. The training must also be approved by the Trades Union Congress or by the independent trade union of which the employee is an official.
18. Trade union officials are more likely to carry out their duties effectively if they possess skills and knowledge relevant to their duties. In particular, employers should be prepared to consider releasing trade union officials for initial training in basic representational skills as soon as possible after their election or appointment, bearing in mind that suitable courses may be infrequent. Reasonable time off could also be considered, for example:for further training particularly where the official has special responsibilities."It therefore fell to the Tribunal to examine exactly those functions that were incidental to his office which were being carried out by Mr Piper. They have been helpfully listed for us by Mr McMullen in his skeleton arguments, but the Notes of Evidence we have before us point out the following: That he was appointed to the Management Committee by election from the employees but he was there to represent members, not only his own members but also the members of other trade unions. He was in fact nominated in 1984 to the Consultative Committee by his own Trade Union. He corresponded with his own and other trade unions and did so from his trade union office. He was nominated in 1986 because he was Branch Secretary. He reported regularly to the shop stewards in connection with pension matters and he advised all of them, all members of his and other trade unions, and indeed the findings which are set in paragraphs 24 and 25 seem to us to be based upon the evidence which was given to the Industrial Tribunal. Therefore it seems to us that it can quite properly be said that Mr Piper is a Branch Secretary of the Transport & General Workers' Union who has been elected to the Management Committee of a pension scheme to represent his members and others, to report back to shop stewards and to advise members in connection with their pensions; that is advice in the widest sense, not only whether to opt in or to opt out but in connection with all other matters, and no doubt, in so far as any changes may be thought to be expedient or advisable in the interests of the workforce. That seems to us to be a very wide function; a wide centre of duties and to be a question of the "special responsibilities" in the somewhat peculiar position which Mr Piper found himself.We therefore reject the first criticism of the judgment of the Industrial Tribunal, we think that the Tribunal did in fact look to the wording of the Section and look to see whether the duties or functions fell within that Section.The second criticism is that pensions were not negotiable and therefore it could not have been a question of collective bargaining. It could not have been a question of the negotiating of the collective agreement. That may be so, but it seems to us that the Tribunal were right because the functions which were being carried out by Mr Piper and the advice he was given and the whole collection of facts surrounding his position and what he was carrying out, seems to us to indicate that he was concerned with negotiations and that those negotiations and his concern with them, related to or were connected with the terms and conditions of employment, because as Mr McMullen has pointed out pensions are pay under European law, but the whole notion is of being involved at least in the preparation for matter which would be relevant to the collective bargaining. It seems to us therefore that paragraph 25 was a justifiable approach and a justifiable reasoning of the Industrial Tribunal. Indeed, the two Industrial Members sitting with me, in particular from their own experience, feel that in these days pensions are a vital part of the terms and conditions of employment and therefore a trade union official whose functions involve him in those matters is involved. at least, in the preparation of matters for the purposes of collective bargaining. So that we also reject the second submission made by Mr Griffith-Jones.So far as the training itself is concerned we have no doubt that training in connection with the problems and the difficulties that are now being encountered in the realms of pensions in the light of Barber v. Guardian Royal Exchange Assurance Group [1990] ICR 616 and the most recent decision to be given from Luxembourg means that it is a justifiable training in connection with these matters.Mr Griffith-Jones made what might be said to be a third criticism of the decision, namely, that the Tribunal had misunderstood the case of Young v. Carr Fasteners Ltd [1979] ICR 844. He submitted that the Tribunal had failed to realise the change in the wording made by the 1989 Act; secondly, that the applicant in that case was in fact a shop steward; thirdly he distinguished the case because pensions provisions in that case were in fact negotiable. Those distinctions of course are clearly valid distinctions, but it seems to us that although perhaps the Industrial Tribunal might not have directed themselves that the present case was on "all fours" with Young nevertheless the help and assistance that they drew from Young was the connection of pensions with negotiations and negotiations in industrial relations of course, now it is narrower. We do not think that that distinction, although it is there, misled this Industrial Tribunal in the approach which it took. We are satisfied here that Mr Piper's request fell within Section 27(1) so that he was qualified to apply for paid time-off. It is only right to make it clear that Section 27 has seven subsections, the qualification section is subsection (1), then whether or not it is reasonable to grant the amount of time-off is subsection (2) and that is not something which we are considering in this appeal. We are considering solely the question of qualification under Section 27(1). We are satisfied here, that a broad approach to the wording but we would also reiterate the comment made by the Industrial Members in the London Ambulance case with their experience at page 780 between C and E where we said:
"The industrial members note that few difficulties have arisen under this section in the past and emphasise that, so far as good industrial relations are concerned, the object of the communication between an employer and the trade union should be to banish suspicion because that can only exacerbate a situation. Frankness is to be encouraged; an employer is entitled to seek sufficiently clear details of the issues involved in order to be able to take an informed decision in answer to a request - it is lack of precision in the present case which has caused us some hesitation; and the trade union, although obviously in some circumstances it will want to play its cards close to the chest, will nevertheless help if it is frank in its answers."
Here there is no particular criticism but it is to be noted that suddenly for the first time after years and years this section seems to have emerged in appeals before this Tribunal. We would urge both sides of industry to seek to understand the problems and to eliminate the difficulties which undoubtedly seem now to be arising.This appeal must be dismissed.