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Safety reps’ legal rights to paid time off
[ch 4: pages 55-56]Regulation 4(2) of the SRSCR says that all safety reps have the right to be paid for the necessary time off work to carry out their safety functions and to undergo union or TUC training courses. Paragraphs 32-35 of the HSE guidance to the SRSCR gives further explanation about the requirement to give paid time off to enable safety reps to train. It emphasises that the length of training required “cannot be rigidly prescribed”.
Training should be proactive and ongoing in order to keep up to date with planned changes in the workplace.
Many safety reps have experienced difficulties in exercising their right to paid time off, particularly for attending training, so it is important to be aware of cases establishing the law in this area.
Where an employer fails to provide paid time off, the safety rep’s remedy is to apply to the employment tribunal (Regulation 11(1) SRSCR Regulations). An application must be made within three months of the date when the failure occurred.
Relevant case law
The case of Davies v Neath Port Talbot County Borough Council [1999] IRLR 769, established that part-time workers should be paid on the same basis as their full-time counterparts when attending a trade union training course. However, in 2009 an Employment Appeal Tribunal (EAT) found that an employer had not breached the regulations after a part-time safety rep attended a Stage 3 course on a day she would not normally work:
Ms Calder, a PCS safety rep, normally worked on Tuesdays, Wednesdays and Thursdays. She applied to attend the course (which was on Friday) but was refused permission. The EAT found that because the course did not take place during working hours, Regulation 4(2) did not come into play.
Calder v The Secretary of State for Work and Pensions UKEAT/0512/08/LA
The right to paid time off to attend a TUC Stage 2 health and safety course was confirmed by the High Court in 1997. The judge overturned a tribunal ruling that had interpreted too narrowly the rights of safety reps to attend trade union courses:
Denny Rama, a safety rep with the RMT rail union, appealed to the High Court, where the judge ruled that the tribunal had incorrectly interpreted the Code of Practice to Regulation 4(2)(b) of the SRSCR, and placed the wrong emphasis on what the employer felt to be “necessary” training. Instead the employer should have considered what was reasonable.
Rama v South West Trains [1997] EWHC Admin 976
An employment tribunal took the same approach for a Stage 3 course. In 2001, a tribunal ruled in favour of a safety representative who had been refused time off work by the Department of Social Security (now the Department for Work and Pensions (DWP)) to attend a TUC Stage 3 health and safety course, leading to a qualification recognised by the Institution of Occupational Safety and Health:
Susan Catten, a PCS civil service union safety rep, was refused time off by her management on the basis that: there was no business case for her to attend the course; she had already undergone basic health and safety training and there was no need for her to attend this course; and the expertise gained on the course could have been obtained from the DSS’s own consultants.
The tribunal concluded that time off to attend the course should have been granted and that the “business case” test was not appropriate in these circumstances. The more appropriate test was whether attendance at the course was reasonable to allow the representative to carry out her health and safety duties. In addition, the tribunal rejected the management’s suggestion that working in an office minimised her need for training, pointing out that office environments had given rise to repetitive strain injuries, stress-related conditions and exposure to violence.
Catten v Department of Social Security ET 2200805/2000