MR P WALKER v NORTH TEES AND HARTLEPOOL NHS TRUST [2008] UKEAT 0563_07_0307

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0563_07_0307Case No Appeal No. UKEAT/0563/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P WALKERAPPELLANTNORTH TEES AND HARTLEPOOL NHS TRUSTRESPONDENT
Before
His Honour Judge Peter Clark Ms J L DrakeDate 3 July 2008
[1]APPEARANCES For the Appellant MR SIMON GOLDBERG (of Counsel) Instructed by: Messrs Thompsons Solicitors The St Nicholas Building St Nicholas Street Newcastle-upon-Tyne NE1 1TH For the Respondent MR GUY BREDENKAMP (Solicitor) Messrs Eversheds LLP Solicitors Central Square South Orchard Street Newcastle-upon-Tyne NE1 3XX SUMMARY Time off Time off for safety representative training. Construction of Regulation 4(2) and 11(1) Safety Representatives and Safety Committee Regulations 1977 . Appeal and cross-appeal allowed. Case remitted for rehearing by fresh Employment Tribunal. HIS HONOUR JUDGE PETER CLARK Introduction This case highlights the importance of considering and applying the relevant statutory provisions to facts found by an employment tribunal. We have before us for full hearing both an appeal by the Claimant and a cross-appeal by the Respondent in the matter of Mr Peter Walker, Claimant, and North Tees and Hartlepool NHS Trust, Respondent.[2]The judgment under appeal is that of an Employment Tribunal sitting at Thornaby on Tees chaired by Employment Judge Mrs R A Rogerson. That reserved judgment was promulgated with reasons on 25 July 2007 following a hearing held on 17 and 18 April and a further day's deliberations by the Tribunal in private on 27 June. By that judgment the Tribunal dismissed the Claimant's complaint of failure by the Respondent to permit him to take time off in accordance with Regulation 4(2) of the Safety Representatives and Safety Committee Regulations 1977 ("the 1977 Regulations"). The complaint to the Tribunal was made under Regulation 11(1) of those Regulations. Time off work[3]Employment legislation contains numerous instances of a right to paid time off from work for various purposes. Other examples include time off for public duties under s50 of the Employment Rights Act 1996 (ERA) and for carrying out trade union duties under s168 of the Trade Union and Labour Relations (Consolidation) Act 1992 . Section 168(2) of the 1992 Act provides specifically for time off during working hours for the purposes of undergoing training in aspects of industrial relations which are relevant to the duties carried out by an employee who is an official of an independent trade union during his working hours and approved by the TUC or his trade union.[4]The 1977 Regulations also provide a right to paid time off work, here for safety representatives. The scheme of the Regulations is important. By Regulation 3, for the purposes of s2(4) of the Health and Safety at Work Act 1974 , a recognised trade union may appoint safety representatives from amongst the employees of the relevant employer. In this case, the Claimant, who commenced employment with the Respondent as a storeman in the Pharmacy Department based at its North Tees site on 18 March 1997, was appointed to represent Unison members in that department as health and safety representative in January 2001. That department had 50 employees. It was managed by Mr Philip Dean. There were approximately 26 health and safety representatives throughout the Respondent Trust. Within the Pharmacy Department there was, in addition to the Claimant, a second health and safety representative, Miss Julie Salmons, a Pharmacy Assistant.[5]In January 2004 the Claimant was appointed the Unison Branch Health and Safety Officer and on 27 January 2004 the Respondent agreed to permit him an allowance of two half days a week to undertake his health and safety duties. This proposal came from Mrs Linford, the union Branch Secretary. Thereafter the Claimant made requests for additional time off over and above his two half-day allocation for specific purposes. Sometimes extra time was granted by Mr Dean, sometimes not.[6]On 29 August 2006 he made two requests to attend training courses outside his two half day weekly allocation. The first was an accident and ill health investigation training course (the accident course) for three days over three weeks between 25 October and 15 November 2006. The second was to attend a TUC Certificate and Occupational Health and Safety training course (the health and safety course). This second course required attendance one day per week over three 12-week terms starting in January 2007, that is over 36 weeks.[7]Those requests were considered by Mr Dean. In relation to the accident course he endorsed on the application form:
"I cannot authorise a paid absence additional to the allowance already given. Please refer to Personnel."
In relation to the Health and Safety course he wrote :
"I cannot authorise a 36-day paid absence. Please refer to Personnel."
[8]Regulation 4(2) of the 1977 Regulations provides:
"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 paragraph 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 the 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."
The relevant Code is the Health and Safety Commission Code of Practice: Time off for the Training of Safety Representatives 1978 (The Code).[9]Before the Tribunal both advocates produced written submissions which are before us. On behalf of the Claimant, Mr Goldberg identified two issues arising for determination under Regulation 4(2)(b) (his skeleton argument, paragraph 6). First, to identify such training in the safety representative's functions that may be reasonable in all the circumstances (including having regard to the Code of Practice); secondly, to identify the paid leave which is necessary for that training.[10]On behalf of the Respondent, Ms Witcombe, then appearing on its behalf, identified the following issues for determination (paragraph 2 of her submissions): o Were the two courses necessary for Mr Walker to perform his duties as a health and safety representative? o Was it reasonable in the circumstances to grant him time off? o Assuming it was necessary, did he need to take time off in addition to his existing allocation of two half days? And was it reasonable in the circumstances to grant him time off over and above that allocation? Before us today Mr Goldberg makes the point that at the close of those written submissions Ms Witcombe addressed the two bullet point questions but not the third.[11]Pausing there, if Regulation 4(2)(b) has to be broken down we prefer Mr Goldberg's formulation. Ms Witcombe's formulation below appears to us to transpose the test of necessity and reasonableness: the former applies to the amount of time off; the latter to the relevance of the training to the representative's health and safety duties.[12]Regulation 11(1) provides that:
"(1) A safety representative may … present a complaint to an employment tribunal that - (a) the employer has failed to permit him to take time off in accordance with Regulation 4(2) of these Regulations."
Thus, if the employment tribunal finds that the employer has failed to grant the employee such paid time off as it necessary for him to undergo such training as is reasonable, the complaint is made out. If not, it is not.[13]Later in his Skeleton Argument below (at paragraph 9) Mr Goldberg characterised Mr Dean's response to both applications for time off made by the Claimant on 29 August 2006 as a "refusal" of the applications.

(b) The Employment Tribunals' Conclusions

[14]These are to be found at paragraphs 9 to 11 of their reasons. As to the accident course, the Employment Tribunal found (paragraph 9) that it was reasonable for the Claimant to attend the course, but that he should have attended that course during the allocated two half days. The claimant accepted that he could have accommodated that course within the allocated time if he had prioritised his time better and therefore it was reasonable for the Respondent to refuse extra time over the time already allocated. There is no appeal by the Claimant against that finding.[15]As to the health and safety course, the Employment Tribunal first asked themselves whether it was necessary for the Claimant to attend that course, echoing Ms Witcombe's formulation of the Regulation 4(2)(b) question. They concluded that the Claimant's request to attend that course had not been refused, and on that basis dismissed the complaint, thus adopting Mr Goldberg's formulation in his closing submissions. However, they went on to find that it was necessary for the Claimant to attend that course; no other safety representative had attended the course in the Respondent's organisation. It would have been reasonable in the circumstances for the Claimant to attend (paragraph 11). In the final sentence of their reasons they say this:
"However, given that the respondents had not refused the request at the time, we concluded that it was reasonable for the claimant to have attended in the allocated time and therefore the respondents had not failed to permit the claimant to attend training contrary to section 4(1) [sic] of the 1977 regulations."
The Appeals[16]The thrust of the Claimant's appeal is that the Employment Tribunal was wrong to conclude that the Respondent, through Mr Dean, had not refused the Claimant's application for time off to attend the health and safety course. That was not in issue between the parties. If that is right then the Claimant succeeds, based on the Employment Tribunal's finding as to necessity.[17]In the cross-appeal it is argued on behalf of the Respondent that if the Claimant is right on the "refusal" point, the Tribunal's decision should nevertheless be upheld because the Employment Tribunal confused the tests of reasonableness and necessity under Regulation 4(2)(b). Interestingly, at paragraph 1 of the skeleton argument lodged for the purposes of these appeals to which Mr Bredenkamp, for the Respondent, speaks, he accepts that it is common ground between the parties that there is a two-stage test under Regulation 4(2)(b); first, is the training reasonable in all the circumstances; secondly, has the employer permitted such time off as is necessary for the safety representative to undergo such training? That formulation, it seems to us, accords with Mr Goldberg's submission below and differs from that put before the Employment Tribunal by the respondent's representative in her written submissions. Discussion[18]Having considered the submission of both parties we return to Regulation 4(2). It is in two parts; Regulation 4(2)(a) refers to the performance of the safety representative's functions and 4(2)(b) to his undergoing training in that function. The regime, in our judgment, should be read as a whole. On the facts of this case the question for the Employment Tribunal was whether two half days' time off per week was sufficient time for the discharge of the Claimant's functions as safety representative and to cover such training in that function as was reasonable. If so, it was not necessary for further time off and there was no failure by the Respondent under Regulation 11(1). If not, then it was.[19]In answering that question, the Employment Tribunal is directed to consider the provisions of the Code in relation to time off for training. In particular, paragraph 3 of the Code provides that following basic training (which this Claimant had undergone) further training, approved in this case by the TUC, should be undertaken where such training is necessary to meet changes in circumstances or relevant legislation. In this case the Claimant applied to go on the health and safety course, he told the Employment Tribunal, because eleven pieces of legislation and changes in the law relevant to health and safety had taken place since he had completed his basic training. It was the Respondent's case that the course was useful, but not necessary (Reasons paragraph 2.16).[20]Further, paragraph 5 provides that the number of safety representatives attending 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 occupational requirements of the employer. On the facts of this case it was possible for the Claimant to attend the health and safety course, using up his weekly allocation of time off for 36 weeks, provided that he could delegate his safety representative function to a colleague, such as Miss Salmons. Was it reasonable to expect him to do so, or was it necessary for him to take further time off in order to attend the health and safety course, if reasonable to do so?[21]The Employment Tribunal it seems to us did not approach the case in this way. Instead, it decided the issue on a wholly irrelevant ground. The focus was not on whether Mr Dean "refused" the Claimant's application. Plainly, if it was necessary for him to have further time off, over and above his weekly allocation, then there was a failure by the Respondent to permit him to have time off in accordance with Regulation 4(2). To that extent the appeal succeeds. However, the real question was whether additional time was necessary for him to attend the health and safety course. As to that, we agree with Mr Bredenkamp that at paragraph 11 of the reasons the Employment Tribunal appears to have conflated necessity and reasonableness under Regulation 4(2). They seem to have found it would be reasonable for the Claimant to have attended the course by virtue of its content and relevance and appear to have concluded that in those circumstances the question as to whether it was necessary for the Claimant to attend was answered in the affirmative. However, as both parties now agree, the question of necessity goes to the amount of time off necessary to undergo such training as was reasonable. That question, in our view, does not seem to have been properly addressed by the Employment Tribunal. To that extent we shall also allow the cross appeal. Disposal[22]Having allowed both appeal and cross- appeal based on our analysis of Regulation 4(2) and its applications, it follows that the Employment Tribunal's decision on the health and safety course must be set aside and the case reheard on that aspect of the claim. Mr Bredenkamp submits that the matter should return to the same tribunal for elucidation of its answer to the relevant question. Mr Goldberg submits that in all the circumstances it would be right for the matter to be reheard by a fresh Tribunal, not least because based on the way in which this Tribunal decided the case he may wish to advance his case both as to evidence and argument in a different way from that in which it was advanced first time on his understanding of the issues. We prefer the submission of Mr Goldberg. There are of course cases where it is appropriate in the interests of proportionality to remit a case to the same Tribunal for some lacuna to be filled. However we have formed the view that this Tribunal adopted a wholly misconceived approach to the issues in this case and in these circumstances it would not be right to return it to the same tribunal. In these circumstances the case must be remitted to a fresh Employment Tribunal for rehearing on the health and safety course issue.