MR W A DUTHIE v BATH & NORTH EAST SOMERSET COUNCIL [2003] UKEAT 0561_02_2904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0561_02_2904Case No Appeal No. EAT/0561/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR W A DUTHIEAPPELLANTBATH & NORTH EAST SOMERSET COUNCILRESPONDENT
Before
His Honour Judge Ansell Mr K Edmondson Mr D J Hodgkins CbDate 29 April 2003
[1]APPEARANCES For the Appellant MR MICHAEL FORD (of Counsel) Old Square Chambers 3 Orchard Court St Augustines Yard Bristol BS1 5DP For the Respondent MISS TESS GILL (of Counsel) Instructed by: Bath & North East Somerset Council Legal Services Riverside Temple Street Keynsham Bristol BS31 1LA HIS HONOUR JUDGE ANSELL This is an appeal from a decision of an Employment Tribunal sitting at Bristol on 26 March 2002, who in an unanimous decision, promulgated on 10 May 2002, held that the Originating Application alleging that the Respondents had failed to allow the Applicant time off to attend the necessary training course in connection with his duties as a Health and Safety Representative, be dismissed. Leave was given for this hearing at a Preliminary Hearing held at this court on 9 September 2002, Mr Recorder Underhill QC presiding.[2]The Applicant was employed by the Respondents as a Rehabilitation Equipment Technician in their Occupational Therapy team in Social and Housing Services and was appointed as a Health and Safety Representative for his union, UNISON, during 1998/1999. The Tribunal found that he was experienced in Health and Safety matters and took a keen and active interest in all matters concerned with Health and Safety issues.[3]The Applicant had already undertaken Trade Union Courses Stages 1 and 2 and in late 2001 applied to go on a Stage 3 Trade Unions course starting in January 2002. By letter of 24 December 2001 the employers indicated they were not prepared to approve the training. At that time they had not received any formal request from the union in relation to the Appellant's attendance at that course. The Appellant commenced these proceedings in early 2002.[4]The Appellant's case before us is that the Tribunal in rejecting his application failed to address the correct test as to whether the proposed training was "reasonable in all the circumstances", as set out in Regulation 4 (2) of the Safety Representatives and Safety Committees Regulations 1977 .[5]Before us and by way of a preliminary issue Mr Ford for the Appellant invited us to consider the relevant statutory provisions to confirm that the Employment Tribunal, and therefore ourselves, had jurisdiction to deal with a claim under the 1977 Regulations. Although the point was not argued below, since the issue raised is an important one of jurisdiction, which did not require any further factual enquiry, we have considered it important to deal with this preliminary issue (see Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 ). Miss Gill for the Respondents has not sought to challenge the Appellant's submissions on this preliminary issue.[6]Section 2 of the Health and Safety at Work Act 1974 provided that: 2(1) "It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.(2) Without prejudice to the generality of an employer's duty under the preceding subsection, the matters to which that duty extends include in particular (a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health; (b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances; (c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees; (d) so far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks; (e) the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work… (4) Regulations made by the Secretary of State may provide for the appointment in prescribed cases by recognised trade unions (within the meaning of the regulations) of safety representatives from amongst the employees, and those representatives shall represent the employees in consultations with the employers under subsection (6) below and shall have such other functions as may be prescribed… (6) It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to cooperate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures."[7]The Safety Representatives and Safety Committees Regulations 1977 provided as follows: 3(1) "For the purposes of the section 2 (4) of the 1974 Act, a recognised trade union may appoint safety representatives from amongst the employees in all cases where one or more employees are employed by an employer by whom it is recognised…(2) Where the employer has been notified in writing by or on behalf of a trade union of the names of persons appointed as safety representatives under this Regulation and the group or groups of employees they represent, each such safety representative shall have the function set out in Regulation 4 below… 4 (1) In addition to his function under section 2 (4) of the 1974 Act to represent the employees in consultations with the employer under section 2 (6) of the 1974 Act (which requires every employer to consult safety representatives with a view to the making and maintenance of arrangements which will enable him and his employees to cooperate effectively in promoting and developing measures to ensure the health and safety at work of the employees and in checking the effectiveness of such measures), each safety representative shall have the following functions: - (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) and to examine the causes of accidents at the workplace; (b) to investigate complaints by any 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 sub-paragraphs (a) and (b) above; (d) to make representations to the employer on general matters affecting the health, safety or welfare at work of the employees at the workplace; (e) to carry out inspections in accordance with Regulation 5, 6 and 7 below; (f) to represent the employees he was appointed to represent in consultations at the workplace with inspectors of the Health and Safety Executive and of any other enforcing authority; (g) to receive information from inspectors in accordance with section 28 (8) of the 1974 Act; and (h) to attend meetings of safety committees where he attends in his capacity as a safety representative in connection with any of the above functions; but without prejudice to sections 7 and 8 of the 1974 Act, no function given to a safety representative by this paragraph shall be construed as imposing any duty on him. (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 purposes of – (a) performing his functions under section 2 (4) of the 1974 Act and paragraphs 1 (a) to (h) above; (b) undergoing such training in aspects of those functions as may be reasonable in all the circumstances having regard to any relevant provisions of a code of practice relating to time off for training approved for the time being by the Health and Safety Commission under section 16 of the 1974 Act. In this paragraph "with pay" means with pay in accordance with the Schedule to these Regulations… 11 (1) A safety representative may, in accordance with the jurisdiction conferred on industrial tribunals by paragraph 16 (2) of Schedule 1 to the Trade Union and Labour Relations Act 1974, present a complaint to an industrial tribunal that – (a) the employer has failed to permit him to take time off in accordance with Regulation 4 (2) of these Regulations; or (b) the employer has failed to pay him in accordance with Regulation 4 (2) of and the Schedule to these Regulations. (2) An industrial tribunal shall not consider a complaint under paragraph (1) above unless it is presented within three months of the date when the failure occurred or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented within the period of three months.(3) Where an industrial tribunal finds a complaint under paragraph (1) (a) above well-founded the Tribunal shall make a declaration to that effect and may make an award of compensation to be paid by the employer to the employee which shall be of such amount as the Tribunal considers just and equitable in all the circumstances having regard to the employer's default in failing to permit time off to be taken by the employee and to any loss sustained by the employee which is attributable to the matters complained of."[8]By paragraph 16 (1) of Schedule 1 of the Trade Union and Labour Relations Act 1974 : 16 (1) "Tribunals established under section 12 of the Industrial Training Act 1964 shall, by the name of Industrial Tribunals, continue to exercise the jurisdiction conferred on them by or under that Act, the Redundancy Payments Act 1965, the Docks and Harbours Act 1966, the Selective Employment Payments Act 1966, the Equal Pay Act 1970 and the Contracts of Employment Act 1972 and also the jurisdiction conferred on them by or under this Act."[9]Thus this paragraph was amended by virtue of Regulation 11 of the 1977 Regulations to provide that an Industrial Tribunal had jurisdiction to deal with complaints relating to time off with pay for safety representatives under the Health and Safety at Work Act .[10]Schedule 1, paragraph 16 of the Trade Union and Labour Relations Act 1974 was repealed by virtue of section 159 (3) of the Employment Protection (Consolidation) Act 1978 . By section 128 of the Employment Protection (Consolidation) Act 1978 : 128 (1) "The Secretary of State may by regulations make provision for the establishment of Tribunals, to be known as Industrial Tribunals, to exercise the jurisdiction conferred on them by or under this Act of any other act, whether passed before or after this Act."[11]By section 159 (1) of the Employment Protection (Consolidation) Act 1978 the transitional provisions and savings in Schedule 15 "shall have effect". Schedule 15, paragraph 4, provided as follows: 4 "Any reference in an enactment or document, whether express or implied, to - (a) an enactment which is re-enacted in a corresponding provision of this Act… shall, except so far as the context otherwise requires, be construed as, or as including, a reference to the corresponding provision of this Act."[12]In White v Pressed Steel Fisher [1980] IRLR 176 the EAT (Mr Justice Slynn P) held that notwithstanding the provision in the Trade Union and Labour Relations Act 1974 , which specifically gave Industrial Tribunals the power to hear complaints about failure to allow safety representatives time off and empowered the Employment Appeal Tribunal to hear appeals, was repealed by the Employment Protection (Consolidation) Act 1978 and not re-enacted expressly in that statute, Industrial Tribunals still had jurisdiction to deal with these matters and the EAT to hear appeals by virtue of paragraph 4 of Schedule 15 to the Employment Protection (Consolidation) Act 1978 and paragraph 11 (5) of the Safety Representatives and Safety Committees Regulations 1977 .[13]The EAT having reviewed the statutory provisions, (as we have), up to that time set out their conclusions in paragraph 13 of their decision: 13 "It seems clear to us that paragraph 11 (5) of the 1977 Regulations is a reference in a document – even if, as we are inclined to think, not in an enactment – to an enactment which is re-enacted in a corresponding provision of the 1978 Act; that is to say, it refers to paragraph 16 of Schedule 1 to the Trade Union and Labour Relations Act 1974 which is re-enacted in substance in s.128 of the 1978 Act. That reference in Regulation 11 (5) to paragraph 16 of the Schedule to the Trade Union and Labour Relations Act 1974 is now to be construed as including a reference to s.128 of the 1978 Act unless the context otherwise requires. Accordingly, Regulation 11 (5) now reads that s.128 of the Employment Protection (Consolidation) Act 1978 is to be amended by adding as a second paragraph to s.128 (1) the provision as to jurisdiction which is set out in paragraph 5 of Regulation 11 of the 1977 Regulations. It seems to us to be quite clear here that the context does not otherwise require and that accordingly the Industrial Tribunal had jurisdiction to deal with this matter and an appeal lies to the Employment Appeal Tribunal under s.136 of the 1978 Act."[14]Matters do unfortunately not end there because section 128 of the Employment Protection (Consolidation) Act 1978 was itself repealed by the Employment Tribunals Act 1996 , section 45 and Schedule 3. The Table of Derivations in Schedule 3 of the Industrial Tribunals Act 1996 shows that section 128 of the Employment Protection (Consolidation) Act 1978 was replaced by Schedule 2 of the Employment Tribunals Act 1996 , which provides in section 2:
"Employment Tribunals shall exercise the jurisdiction conferred on them by or by virtue of this Act or any other Act, whether past, before or after this Act."
[15]Further, Schedule 2 of the Employment Tribunals Act 1996 contained similar transitional provisions to the Employment Protection (Consolidation) Act 1978 in paragraph 4: 4 (1) "Any reference (express or implied) in any enactment, or in any instrument or document, to a provision repealed or revoked by this Act is (so far as the context permits) to be read as (according to the context) being or including in relation to times, circumstances and purposes after the commencement of this Act a reference to the corresponding provision of this Act."[16]We are quite satisfied that adopting a similar analysis to that of this court in the case of White v Pressed Steel Fisher [1980] IRLR 176, and in particular to paragraph 13 of their judgment, as set out above, the reference in Regulation 11 (5) to paragraph 16 of the Schedule to the Trade Union and Labour Relations Act 1974 is now to be construed as containing a reference to section 2 of the Employment Tribunals Act 1996 . Further, the Employment Appeal Tribunal has jurisdiction to hear appeals in relation to matters listed at section 21 of the Employment Tribunals Act 1996 ; these include proceedings before an Employment Tribunal "under or by virtue of" the Employment Tribunals Act 1996 and thus we are satisfied that both the Employment Tribunal and ourselves have jurisdiction to deal with applications arising from an alleged breach of the 1977 Regulations.[17]We are fortified in this view by reference to two other provisions. Firstly, the Council Directive on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EEC). Article 11, paragraph 5 provides as follows: 5 "Employers must allow workers' representatives with specific responsibility for the safety and health of workers adequate time off work, without loss of pay, and provide them with the necessary means to enable such representatives to exercise their rights and functions deriving from this Directive."[18]Clearly in the absence of a right of appeal to an Employment Tribunal the corresponding right given to recognised representatives under the 1977 Regulations would not be given effective protection under national law and we should therefore construe the relevant provisions so far as possible to ensure that effective protection is given to EU rights (see Marleasing v la Comercial Internacional de Alimentacion [1990] 1-ECR 4135 at 4159).[19]Secondly, the Health and Safety (Consultation with Employees) Regulations 1996 dealt with the appointment of representatives of employee safety where the employees were not represented by safety representatives appointed under the 1977 Regulations. Schedule 2 of those Regulations set up a similar procedure to that in the 1977 Regulations to allow these non-union representatives to complain to Employment Tribunals that the employer had failed to provide them with time off. Again, if we were to construe the re-enacted legislation as not giving a right of appeal to representatives under the 1977 Regulations there would clearly be a serious anomaly as compared to those representatives appointed under the 1996 Regulations.[20]We will now consider the merits of the appeal. As was already indicated, the duty on the employer under Regulation 4 (2) is to "permit a safety representative to take such time off with pay during the employee's working hours shall be necessary for the purposes of…undergoing such training and aspects of those functions as may be reasonable in all the circumstances, having regard to any relevant provisions of a code of practice relating to time off for training approved for the time being by the Health and Safety Commission…"[21]The relevant code of practice is the Health and Safety Commission Code of Practice: Time Off for the Training of Safety Representatives (1978) , which provides as follows: 3 "As soon as possible after their appointment safety representatives should be permitted time off with pay to attend basic training facilities approved by the TUC or by the independent union or unions which appointed the safety representatives. Further training, similarly approved, should be undertaken where the safety representative has special responsibilities or where such training is necessary to meet changes in circumstances or relevant legislation. 4 With regard to the length of training required, this cannot be rigidly prescribed, but basic training should take into account the function of safety representatives placed on them by the Regulations. In particular, basic training should provide an understanding of the role of safety representatives, of safety committees, and of trade union policies and practices in relation to:(a) the legal requirements relating to the health and safety of persons at work, particularly the group or class or persons they directly represent;(b) the nature and extent of workplace hazards, and the measures necessary to eliminate or minimise them;(c) the health and safety policy of employers, an organisation and arrangements for fulfilling those policies. Additionally, safety representatives will need to acquire new skills in order to carry out their functions, including safety inspections, and in using basic sources of legal and official information and information provided by or through the employer on health and safety matters. 5 Trade unions are responsible for appointing safety representatives and when the trade union wishes a safety representative to receive training relevant to his functions it should inform management of the course it has approved and supply a copy of the syllabus, indicating its contents, if the employer asks for it. It should normally give at least a few weeks' notice of the safety representatives it has nominated for attendance. The number of safety representatives attending training courses at any one time should be that which is reasonable in the circumstances, bearing in mind such factors as the availability of relevant courses and the operational requirements of the employer. Unions and management should endeavour to reach agreement on the appropriate numbers and arrangements and refer any problems which may arise to the relevant agreed procedures."[22]The Appellants submit that the test of necessity only arises once it has been decided that a course is reasonable in all the circumstances, not at a prior stage. The test of "necessary" therefore focuses on whether paid time off is necessary to attend a course, not on whether the course itself is in some sense necessary. Mr Ford for the Appellant points to the language of the Tribunal's decision, which on a number of occasions uses the word "necessary" in relation to the training, whereas, he submits, the proper consideration was whether the training was reasonable in all the circumstances.[23]The relevant paragraphs of the Tribunal's decision here: 4 "It was turned down because it was not considered necessary by the employer for him to undertake that course to enable him to perform the tasks for which he had been appointed…It was the opinion of, not only the employer but also of the trade union, that it was not necessary for the Applicant to attend this course. 5 On the basis of the material before us it is impossible for us the find that it was an essential part of this man's training for him to undertake the Stage 3 course. He has facilities within his own trade union, and the Respondent's health and safety structures, to obtain such further information and advice as is necessary for him to properly perform his health and safety functions. 6 We therefore find that it was not necessary for him to have this additional training…The test is whether it was necessary as part of the health and safety structure within the place of employment for him to do so. On the basis of the evidence before us we have come to the conclusion that it was not necessary. 7 The duty to provide training is a duty placed upon the employer. They cannot pass that duty on to the trade union. They can and should consult with the trade union but it is the duty of the employer to decide whether such courses are necessary…"[24]In White v Pressed Steel Fisher [1980] IRLR 176, to which we have already made reference in relation to the jurisdictional point, the court said this at paragraph 21:
"But, in our judgment, the question whether time off is necessary to undergo such training as is reasonable in all the circumstances is to be decided not merely by looking at the Code but by looking at all the circumstances, having regard to the provisions of the Code of Practice…The Code is of weight – great weight – but is not decisive of the issue."
[25]In Rama v South West Trains [1997] EWHC Admin 976, the Respondents had refused Mr Rama time off with pay to attend a Stage 2 course. The Industrial Tribunal had firstly identified: 9 "The issue between the parties…is whether the TUC sponsored Stage 2 course constitutes training which is reasonable to enable the Applicant to carry out functions listed in Regulation 4 (1)" But then went on as follows:
"It is our view that the test must therefore be an objective one, that is to say it is not whether the employee or the employer regard the training as necessary but what from an objective point of view is necessary to comply with the Regulations."
[26]On behalf of the employee it was submitted that the Tribunal had asked itself the wrong question; namely, whether it was necessary for the purposes of Mr Rama's functions as a safety representative for him to attend the course in question; whereas the correct question was whether undergoing the training was reasonable in all the circumstances for aspects of Mr Rama's functions as a duty-appointed safety representative.[27]Forbes J, at paragraph 14, said thus: 14 "In my opinion, it is noteworthy that in the Code of Practice there is, so far as I can ascertain, no suggestion that the reasonableness of training for the purposes of Regulation 4 of the 1977 Regulations is to be equated with or limited to what is necessary to enable the safety representative to fulfil his functions under Regulation 4 of the 1977 Regulations."[28]He then went on at paragraph 18: 18 "I have given careful consideration to the competing submissions in this case and have come to the conclusion that Mr Kelly's submissions are correct. Although the Industrial Tribunal did identify the correct issue which had to be decided (see paragraph 2), it determined that issue by reference to the wrong standard…The Tribunal plainly equated what was reasonable in all the circumstances with what was necessary for Mr Rama to perform his various functions under Regulation 4. In doing so they fell into error, in my opinion. I accept that training which is necessary to perform the functions set out in Regulation 4 is likely to form a significant part of any training "in aspects of those functions as may be reasonable in all the circumstances." However, in my judgment, necessity is not necessarily determinative of all aspects of reasonableness for these purposes, although each case must be decided by reference to its own facts. In this case, the Industrial Tribunal also held that the matters covered in the Stage 2 Course were "undoubtedly" of use to Mr Rama as a safety representative…That sort of finding of fact might have justified a conclusion that the training was reasonable within the terms of Regulation 4 (2) of the 1977 Regulations, despite going further than was necessary for him to perform his functions under Regulation 4, had the Industrial Tribunal not equated reasonableness with necessity."[29]Miss Gill for the Respondents submits that the Tribunal came to a correct decision. Firstly she points out that the Tribunal reminded themselves at the beginning of their decision of the relevant regulations and refers us to paragraph 5 of the decision, where the Tribunal held that it was impossible for them to find that it was "an essential part of this man's training for him to undertake the Stage 3 Course." Insofar as the Tribunal use the word "necessary" she submits that they have imported that word from paragraph 3 of the Code of Practice, which refers to the representatives having further training "where such training is necessary to meet changes in circumstances or relevant legislation." Finally she submits that on the findings made by the Tribunal this court should find that even applying the correct test of reasonableness that the further Stage 3 training was not reasonable in all the circumstances.[30]We cannot agree with those submissions. Nowhere in the Tribunal's decision is the correct test set out, and the word "necessary" is used by the Tribunal on numerous occasions, rather than the word "reasonable – in all the circumstances". We do not accept that the Tribunal were using the word "necessary" in relation to the Code of Practice. Not only do the Tribunal fail to mention the Code of Practice but the scope of their language clearly indicates to us that they were applying the wrong test and thus they have clearly imposed a higher threshold on themselves than simply asking whether the course was reasonable in the circumstances, and has therefore misdirected themselves. Further, we agree with Mr Ford's submissions that it would not be appropriate for us to impose our own view as to whether a Stage 3 Course was or was not reasonable in all the circumstances of this particular case.[31]We agree with Mr Ford that the Tribunal would need to identify a number of features before coming to conclusions such as the particular contents to the Stage 3 Course, whether it involved basic training, how it related to the particular functions that this employee was performing and whether the training would have assisted him in performing those particular functions, as well as considering whether the employer would be able to manage if the employee did have time off for this particular course. The Tribunal have not made sufficient findings which would enable us to form a view as to the issue of reasonableness.[32]Accordingly we would allow this appeal and remit the matter to a fresh Tribunal for a re-hearing.