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Case law on time off for safety reps
[ch 4: pages 61-63]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, the Employment Appeal Tribunal (EAT) found that an employer had not breached the regulations by refusing to allow a part-time safety rep to attend a Stage 3 course on a day she would not normally work.
Ms Calder, a public and commercial services union 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. 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 in the case of a safety representative who had been refused time off work by the then Department of Social Security (DSS), 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 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
The EAT upheld an employment tribunal decision not to award a rail union RMT safety rep an injury to feelings award after London Underground failed to allow him to take paid time off to investigate a dangerous occurrence. The original tribunal found that in principle an injury to feelings could be awarded in these circumstances, but that in this case, Mr Rowe had not suffered any notable or significant stress or injury to feelings as the result of the refusal. However, the EAT disagreed and said that an award of compensation for injury feelings could not be made as a matter of principle under Regulation 11(3) of the SRSCR. The EAT’s observations can be referred to as guidance but are not binding (Rowe v London Underground Ltd [2016] UKEAT/0125/16/JOJ).
A general union GMB safety rep won the right to time off to attend a TUC Stage 3 training course against the wishes of his employer, Camden Council, which had refused him permission. Grant Bennett, a bus driver for people with disabilities, had offered to complete the course online rather than face-to-face to reduce the time off he would need. The council argued that its recognition agreement only allowed time off for advanced training for reps representing a whole directorate. The GMB argued that transport was an area with many hazards and the wording of the recognition agreement should not restrict his time off. An employment tribunal agreed and said Bennett had the right to time off under the Trade Union and Labour Relations (Consolidation) Act 1992. He was awarded £2,500 in compensation plus the tribunal fees incurred. Tribunal fees have since been abolished (see page 74).
Mr G Bennett v London Borough of Camden: 2200243/2017