Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2616/06

CLAIMANT: Terry Keenan

RESPONDENT: Newry & Kilkeel Institute of Further & Higher Education

DECISION

The unanimous decision of the tribunal is that the respondent did not act in breach of Articles 92 and 93 of the Employment Rights (Northern Ireland) Order 1996 in not permitting the claimant time off on 28 September 2006 and 26 October 2006.

Constitution of Tribunal:

Chairman: Ms J Knight

Members: Mr J Smyth

Mr J Magennis

Appearances:

The claimant was represented by Mr G Donaghy, Barrister-at-Law, instructed by University and College Union Solicitor's Office

The respondent was represented by Mr A Colmer, Barrister-at-Law, instructed by the Education & Library Board's Solicitors.

The issue to be determined by the tribunal was whether in refusing to allow the claimant to attend meetings of the Lecturers' Negotiating Committee on 28 September 2006 and 26 October 2006, the respondent had failed to permit the claimant to take reasonable time off for carrying out trade union duties.

The tribunal considered the originating claim of the claimant, the response of the respondent, the oral evidence of the claimant, Mr Terry Keenan and his witness, Mr Jim McKeown, full-time regional official for the University and College Union, and Mrs Noeleen Smith, Ms Mary Connolly and Mr Brian Doran, witnesses for the respondent. In addition the tribunal had opened to it an agreed bundle of documents. After considering all the evidence before it, the tribunal found the following relevant facts to be proved on a balance of probabilities:

1. The claimant, Mr Terry Keenan has been employed by the respondent, the Newry and Kilkeel Institute of Further and Higher Education from 1 September 1992. He is a lecturer in Health and Social Care and Child Care in the School of Health Access and Applied Science. The claimant has had trade union responsibilities at both college and regional level over a considerable period of time. He is the chairman of the Further Education Sector Committee of the University and College Union (the "UCU") and is an elected representative from the UCU to the Lecturers' Negotiating Committee (the "LNC"), a joint employer/union body with responsibility for determining the terms and conditions of employment and pay for lecturing staff in further education colleges in Northern Ireland. Prior to June 2006 and the formation of the UCU, the claimant was chairperson of NATFHE Northern Ireland region. His involvement with the LNC is a regional responsibility and he is required to attend meetings of the LNC and other trade union meetings on a regular basis.
2. Since May 2006 there has been an ongoing pay dispute in the further education sector in Northern Ireland concerning parity of pay between further education college lecturers and teachers. The industrial action has included three one day strikes on 25 and 31 May and 19 September 2006 and action short of strike including the withdrawal of goodwill, strict working to the 36 hour working week, refusal to take on additional duties such as overtime and the refusal to cover for absent colleagues. Guidance issued by NATFHE on 22 May 2006 was that there was "no cover [for absent colleagues] to be provided in any circumstances."
3. It was common case that the industrial action was well supported throughout the further education sector in Northern Ireland, including the Newry & Kilkeel Institute and that over the summer months the industrial action intensified and became embedded. In the claimant's department, not one member of staff whether full-time or part-part crossed the picket line.
4. The claimant's line manager, Mrs Noeleen Smith, Head of the School of Health, Access and Applied Science, is responsible for the operational delivery of the curriculum within the department. She is a union member and supports the industrial action. Her line manager is Mrs Mary Connolly, Head of Faculty who in turn reports to the Deputy Director, then Mr Brian Doran.
5. The respondent is affiliated to the College Employers' Forum and is bound by an Agreement between the management and staff sides of the Lecturers' Negotiating Committee for the "FACILITIES FOR REPRESENTATIVES OF RECOGNISED TEACHERS' ORGANISATIONS (FURTHER EDUCATION)." It was not disputed by the respondent that the claimant is an accredited representative of a recognised Teachers' Union. Paragraph 9 of that Agreement provides "accredited representatives should not be refused unreasonably the remission of college duties and/or leave of absence necessary for the performance of their duties and the time which the performance of those duties is likely to occupy should be taken into account when determining the college duties to be performed by teachers who are accredited representatives." In implementing the facilities Agreement the respondent has regard to the provisions of the Labour Relations Agency Code of Practice on Time Off for Trade Union Duties and Activities.
6. Where an accredited trade union representative, such as the claimant, requires time off to attend to regional responsibilities, he or she is obliged to complete a leave of absence/staff development application form which is given to the line manager, in the claimant's case, Mrs Smith. The line manager then looks at the timetable and completes the arrangements for cover section on the form. This is then passed as a recommendation to the Head of Faculty who if satisfied that there is sufficient cover available will recommend the approval of leave. The form is then passed to the Deputy Director, who if approves leave in turn passes the form to the Director, who was at the relevant time Dr R J Mullan. Provided satisfactory cover is available then the leave requested will be granted. However if it is apparent that there is no cover available then the request can be refused at the Faculty Director level. Up until September 2006 the respondent permitted him to take leave in order to attend at these meetings.
7. Traditionally September and October are very busy times in the Newry and Kilkeel Institute as classes are bedding in and new members of staff are being given contracts. The tribunal accepted the evidence of Mrs Smith that until up the Halloween break of 2006, it was custom and practice not to use part-time staff to cover for the absence of full-time lecturers and that where possible there should be a skills match between the person taking leave and the colleague providing cover to ensure the delivery of the curriculum to classes. The respondent's witnesses rejected suggestions made on behalf of the claimant that classes could have been left either unsupervised or supervised by non-lecturing staff. There is a strict policy that classes are taught and not simply "babysitted".
8. On 18 September 2006 the claimant submitted an application form for leave to enable him to attend a meeting of the LNC on 28 September 2006. However he was timetabled at the same time to teach Class 2B in Diploma in Childcare and Education which comprised 18 students mainly aged between 16 to 18 years. The tribunal accepted Mrs Smith evidence that when she received the form she considered the claimant's timetabled duties and whether cover could be arranged. She was aware of the NATFHE guidance in relation to cover and consequently concluded that there would be no cover available for the claimant. She inserted two question marks into the arrangements for cover box on the application form. She then signed the form and passed it to Mrs Connolly. The words "I am satisfied that all the professional duties of the lecturer named or covered in the period outlined" are typed upon the form immediately above the line manager's signature. The tribunal accepted Mrs Smith's evidence that she signed the form merely to indicate the date of receipt and consideration of cover and not because she considered that there was adequate cover for the claimant. The tribunal observes that in this regard the form is badly set out and potentially misleading.
9. On seeing the question marks, Mrs Connolly consulted with Mrs Smith and concluded that there was indeed no cover available and she decided on 21 September 2006 that she was unable to approve the leave of absence. She notified the claimant of this by e-mail. The claimant spoke to the Director of the Institute about this refusal on 27 September 2006 when Dr Mullan advised the claimant to seek clarification through the Deputy Director's office. The claimant did not contact the Deputy Director but placed the matter in the hands of the full-time official, namely the Regional Officer of the UCU, Mr Jim McKeown. This was notified by the claimant to Dr Mullan in an e-mail of 29 September 2006.
10. The meeting of the LNC proceeded on 28 September 2006 in the absence of the claimant. The following day Mr McKeown wrote to Dr Mullan requesting an opportunity to meet with him to discuss the refusal to allow the claimant time off with pay to attend the meeting on 28 September 2006 and also to secure his "agreement that Newry Institute would recognise the rights of Mr Keenan in conducting industrial relations duties on behalf of lecturers in your college and across the region". Dr Mullan responded by letter of 3 October 2006 advising that "one of the conditions which must be met in order to secure release from professional lecturing duties is that adequate cover is in place. On this occasion the head of the school was clearly unable to provide such cover and as a result this request could not be facilitated". Dr Mullan referred Mr McKeown to the Labour Relations Agency Code of Practice on time off for trade union duties and responsibilities section 4, Points 37 and 43 that the granting of such time off should be balanced with a need to maintain a service to the public and the need for safety and security. He maintained that, "In the absence of adequate cover, Mr Keenan's attendance at the meeting on 28 September would have presented a risk to the service and to the security of the students at this Institute."
11. The claimant lodged further requests for leave of absence on 29 September 2006 and on 3 October 2006 to enable him to attend the UCU Further Education meeting at the East-Antrim Institute on 18 October 2006 and the LNC meeting on 26 October 2006 respectively. On 26 October 2006 the claimant was again scheduled at the same time as the LNC meeting to teach class 2B. Both of these requests were considered at the first instance by Mrs Smith who indicated on the forms that there was no cover available before passing them up to Mrs Connolly. On 10 October 2006 Mrs Connolly considered the two applications and refused to approve leave on both. This was confirmed to the claimant by e-mail dated 12 October 2006 which was copied to Mrs McKeown. The claimant is not raising any complaint about the refusal to grant leave by the respondent to enable him to attend the meeting on 18 October 2006.
12. As a consequence of the refusal to allow the claimant to attend the LNC meeting, the staff side withdrew from the meeting scheduled for 26 October 2006 and indeed there were no further meetings of the LNC until 21 March 2007. There was an exchange of communications between Mr McKeown and the College Employers' Forum throughout the ensuing weeks. The respondent's position was communicated to Mr McKeown through a letter from Desmond Linton Chairman of the College Employers' Forum dated 8 November 2006 in which it was indicated that the respondent was willing to consider releasing Mr Keenan to attend the LNC if the meetings were "scheduled at a time which does not conflict with his professional duties as a member of lecturing staff or for which cover will be provided by his colleagues." It was noted in this letter that Mr Keenan was in attendance at the vast majority of the LNC meetings since 9 February 2004 and that his apologies had been recorded for the meeting on 19 June 2006. On 10 November 2006 Mr McKeown replied by letter to Mr Linton in which he said "you are aware of the campaign of industrial action in the sector which includes a ban on cover. It is unreasonable that this college should pursue such a condition in the context of this dispute. That condition is also unacceptable and contrary to the agreed arrangements regarding facilities for recognised teachers' organisations."
13. In view of the fact that the industrial dispute had worsened throughout September and October 2006, the Head of Faculty, Mrs Connolly took steps to put in place arrangements for part-time staff to provide cover for its full-time members of staff taking leave of absence for whatever reason. Part-time staff were to be used from the end of the half term (Halloween) break. By the mid-term break Mrs Smith was beginning to identify which of her part-time staff were in the union and who were not. Prior to this she was not aware of this information.
14. The claimant subsequently applied for leave to attend a meeting of the UCU Further Education Sector Committee on 29 November 2006 and a UCU training day 4 December 2006. Both of these requests were granted as Mrs Smith was able to obtain cover for the claimant's duties through the use of part-time staff who were not union members.
15. The claimant lodged his originating claim with the industrial tribunal on 4 December 2006. In this he complained that he had not been permitted to take reasonable time off for carrying out trade union duties by reason of the refusal of the respondent to allow him to attend the meetings of the LNC on 28 September and 26 October 2006 respectively. In cross examination the claimant agreed that the respondent had facilitated all his other requests for time off for carrying out trade union duties.
16. It was submitted by counsel for the claimant that the reason for the refusal was that there was antipathy towards the claimant as a member of the UCU and that the refusal to allow the claimant to attend was a managerial response to the industrial action. It was further submitted on behalf of the claimant that the respondent's contention that no cover could be provided on these occasions was untrue. It was contended that the respondent could have provided cover through for example the use of the non unionised part-time staff and at an earlier stage. It was not a reasonable response of the respondent to refuse the claimant time off to attend the LNC meetings on the two dates in question and further this was in breach of the joint agreement.

The Law

17. The right to take time off for carrying out trade union duties is contained within Article 92 of the Employment Rights (Northern Ireland) Order 1996 which provides that an employer shall permit an employee of his who is an official of an independent trade union recognised by the employer to take time off during his working hours for the purpose of carrying out trade union duties.
18. Article 92(3) specifies that "the amount of time off which an employee is to be permitted to take under this Article and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a code of practice issued by the Agency under Article 90 of the 1992 Order."
19. The tribunal was referred to a number of legal authorities including Ministry of Defence -v- Crooke and Irving 1982 IRLR 488 EAT, Wignall -v- British Gas Corporation 1984 IRLR 493 EAT, Riley-Williams -v- Argos Limited EAT/811/02/RN , Skiggs -v- South West Trains Ltd 2005 IRLR 459. The tribunal had regard to the Labour Relations Agency Code of Practice on Time Off for Trade Union Duties and Activities. Paragraph 37 of the Code provides that the amount and frequency of time of should be "reasonable in all the circumstances". Although the statutory provisions apply to all employers without exception as to size and type of business or service, trade unions should be aware of the wide variety of difficulties and operational requirements to be taken into account when seeking or agreeing arrangements for time off for example the size of the organisation and number of workers, the production process, the need to maintain service to the public and the need for safety and security at all times. Paragraph 43 of the Code specifies that when deciding whether requests for paid time off should be granted, consideration would need to be given as the reasonableness, for example, to ensure adequate cover for safety or to safeguard the production process or the provision of service…… Paragraph 44 of the Code provides that employers need to consider each application for time of on its merits; they might also need to consider the reasonableness of the request in relation to the agreed time off already taken or in prospect.
20. The tribunal considered Harvey on Industrial Relations and Employment Law Division NI Labour Relations Paragraphs 1990 – 1996. An employee does not prove his entitlement to paid time off simply by proving that the purposes for which he requires time off are appropriate purposes within the statute. He is emphatically not entitled to take whatever time is necessary to discharge his duties. He may claim only such time off (if any) as is reasonable in all the circumstances. The appropriateness of the duties is but one factor. The need to have time off to discharge them is but one factor. It is also necessary to consider the surrounding circumstances – the effect on the employer's business of granting time off and the effect on the official and his union of refusing it. Counsel in the present case agreed that it is for the tribunal to make its own objective assessment of what is reasonable in all the circumstances.

CONCLUSIONS

21. The tribunal was satisfied that there was no evidence before it to support the claimant's contention that the respondent had an anti trade union agenda in not permitting him to attend the LNC meetings in September and October 2006. The claimant's previous requests for time off for trade union duties had without exception been granted because cover was available. Likewise the respondent permitted the claimant's requests for time off after the Halloween break as it was able at that stage to put in place arrangements to provide cover by part-time employees. The tribunal concluded that the reason why the claimant was not permitted to take time off to attend the LNC meetings on 28 September 2006 and 26 October 2006 was because there was no cover available.
22. The tribunal was satisfied the respondent's requirement that cover be provided as a condition for allowing a member of staff to take leave was legitimate and reasonable. The tribunal was mindful that on those particular occasions, the majority of the claimant's students were in the 16 to 18 year age group and does not accept that they could simply have been left unsupervised, which was the alternative facing Mrs Smith, given her understanding of and reliance on the union guidance that there should be no cover provided in any circumstances. The tribunal was satisfied that the respondent's requirement for adequate cover was necessary on both grounds of delivering the service and health and safety issues. The tribunal did not accept claimant's suggestion that these circumstances ceased to have significance or were overridden by the industrial action.
23. Balancing all of the circumstances in this case the tribunal is satisfied that on each of these two occasions it was not possible for the respondent to permit the claimant to take time off to attend the LNC meeting and that it had not acted in breach of either the facilities agreement or the LRA Code of Practice.
24. On this basis the tribunal unanimously decides that the claimant's complaint is not well founded and accordingly dismisses his claim.

Chairman:

Date and place of hearing: 13 and 14 June 2007, Belfast

Date decision recorded in register and issued to parties: