Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/02643_10IT.html
Cite as: [2011] NIIT 2643_10IT, [2011] NIIT 02643_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2643/10

CLAIMANT: Roy Kimpton

RESPONDENT: Translink

DECISION

The unanimous decision of the Industrial Tribunal is that the claimant was not unreasonably refused paid time off for training purposes contrary to Regulation 4(2) and Regulation 11 of the Safety Representatives and Safety Committees Regulations (Northern Ireland) 1979.

Constitution of Tribunal:

Chairman: Miss Elizabeth McCaffrey

Members: Mrs Jacqueline Kennedy

Mrs Carmel Lewis

Appearances:

The claimant was represented by Mr G Daly of Francis Hanna and Company Solicitors.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Elliott Duffy Garrett Solicitors.

The Issues

1. The issue for the tribunal to decide was whether the claimant had been unreasonably refused paid time off work to attend a stage 3 course in Occupation Health and Safety arranged by the Irish Congress of Trade Unions. In this regard the tribunal had to consider whether the respondent had been in breach of its obligations to the claimant as a Health and Safety representative contrary to Regulation 4 (2) and Regulation 11 of the Safety Representatives and Safety Committees Regulations (Northern Ireland) 1979.

2. In particular the tribunal had to consider the test under Regulation 4(2)(b) namely, is the training reasonable in the circumstances and (b) has the employer permitted such time as is necessary for the safety representative to undergo such training.

The Facts

3. The tribunal heard evidence from the claimant, Mr Kimpton, from Mr Humphrey, Health and Safety Group Manager for the respondent and Ms Heather Grant, HR Business Partner (Rail). On the basis of their evidence and the documents opened to us, we make the following findings of relevant facts.

4. The claimant has been employed by the respondent as a Marketing Officer since January 2004. He was subsequently elected as a Health and Safety Officer by his Union TSSA. The claimant was elected as chairman of the respondent’s railway operations Health and Safety Committee in or around August 2008, a position he held for two years.

5. Following the claimant’s election as a Health and Safety representative, he requested time off from the respondent to attend training courses organised by the Irish Congress of Trade Unions. He attended stage 1 and stage 2 of training courses with the approval of the respondent and on each occasion he was given 10 days paid leave to complete this training. Following this, the claimant attended the respondent’s 3 day internal safety representative training course on 18-20 November 2008 and was also released to attend annual internal safety conferences. In addition, he carries out safety inspections on approximately 12 days per year.

6. In or around 2008 the claimant requested paid time off to attend the stage 3 Diploma course in Occupational Health and Safety (referred to in this decision as “the stage 3 course.”) This request was rejected as the claimant had not given sufficient notice for a request for release from work.

7. In November 2009 the respondent received a letter from the claimant’s Trade Union representative, Patrick McCosker, again requesting the release of the claimant for one day per week to attend the stage 3 course for a period of 36 weeks (an academic year). The respondent requested further information from the claimant and the Irish Congress of Trade Unions (Northern Ireland Committee) wrote a letter on his behalf dated 17 November 2009 providing information as to the nature and duration of the stage 3 course. The letter states, amongst other things,

“The diploma programmes are offered over an academic year which equates to approximately 36 days of classroom contact and additional time where each student is required to prepare for project work and classroom activities. The students are assessed in a number of ways, through ongoing evidence of achievement, building portfolios, through the development and presentation of a research project and also through passing a time limit of exercise. The diploma in Occupational Health and Safety is recognised as equivalent to a NEBOSH general certificate.”

8. The respondent referred the claimant’s request for time off to Mr Humphrey, the respondent’s corporate Health and Safety advisor. His evidence to the tribunal was that when the requests were first forwarded to him he had not seen the course syllabus, but had seen it later and considered it in some detail.

9. Meetings were held with the claimant, his Trade Union representative and the respondent’s representatives (Ms Grant and Mr Humphrey) to establish the content of the stage 3 course and to make a decision as to whether the claimant should be released.

10. Mr Humphrey’s evidence was that he believed that there was an overlap and similarities between the stage 1 and stage 2 courses and the stage 3 course. He believed the main difference with the stage 3 course was that there were elements in relation to communication, study skills and ICT, including working with figures. It was his view that these elements did not fall within the functions of a Health and Safety representative. The functions of a Health and Safety representative are set out at Regulation 4 of the Safety Representatives and Safety Committees Regulations (Northern Ireland) 1979. The functions of a Health and Safety representative are set out at paragraphs (a) - (h) of that regulation, the detail of which is set out at paragraph 18 of this decision.

11. Mr Humphrey stated (and it was not contradicted by the claimant) that paragraphs (a) - (f) were all covered by stage 1 and 2 of the Health and Safety courses, the internal health and safety course conducted by the respondent and other internal courses. It was his contention that the training which had already been given to the claimant was reasonable in all the circumstances.

12. While Mr Humphrey agreed that the modules in the stage 3 course which related to communication skills, analytical skills and ICT would be helpful to the claimant in presenting his case to management, he indicated that the claimant’s functions under the regulations did not require any IT skills nor being able to use databases or present information.

13. The respondent’s representatives raised with the claimant the fact that the ICTU letter indicated that the stage 3 course was equivalent to the NEBOSH certificate. The NEBOSH course was offered by the respondent as part of its voluntary education course on the basis that it would involve part release from work and part funding by the union. From the respondent’s point of view, it was also significant that the NEBOSH course would involve 12 days’ absence from work as opposed to the 36 days required by the stage 3 course. The respondent put this proposal to the claimant at meetings but the claimant was of the view that he wanted to attend the Trade Union course. When it was put to him on cross examination that the NEBOSH course was equivalent to the stage 3 course, his response was that the Health and Safety course led to a diploma, it was designed for Trade Union representatives and that he wanted to do that course. The respondent’s representative indicated that at the meetings, the claimant was adamant that he wanted to do the Trade Union course and that he was not content to pursue the option of the NEBOSH course. Mr Humphrey and Ms Grant also indicated that training in computer skills would be available to the claimant through internal training. Mr Humphrey suggested that the claimant would have been able to undertake the European Community Driving Licence course through the respondent’s own IT Department.

14. Ms Grant said she believed it was reasonable on the respondent’s part to suggest that the claimant take the NEBOSH course as opposed to the stage 3 course. The qualifications were equivalent and knowing the good work that the claimant had done as a Health and Safety representative, she believed that the attendance at the NEBOSH course would be appropriate and reasonable in the context of the experience he would gain on the course and the time frame of 12 days’ leave it would require. When asked how many days would be allowed for IT training, she indicated she could not say exactly because this had not been discussed specifically but she was aware that the ECDL course could be done over a period of time.

15. Ms Grant indicated that there were various factors to be taken into account in deciding whether or not to approve the time off for the claimant. She was aware that the respondent had a total of 70 Health and Safety representatives and consideration needed to be given to training for all of them. Mr Humphrey had indicated that approximately one-third of the respondent’s Health and Safety representatives had not completed either the stage 1 or stage 2 course, although they were given basic training through the respondent’s own courses. He pointed out that it was necessary for the respondent company to be fair with all representatives and all unions in ensuring that they had a similar level of training.

16. Ms Grant also pointed out that if the claimant was to have a day off each week to do the stage 3 course, then relief staff would have to be brought in to cover the claimant’s job and because of staff shortages, relief staff were not always available. If other staff were asked to cover on their days off, they had to be paid overtime rates. Given the current financial climate, cost was a factor which had to be taken into account. She stated that 36 days absence with pay for training was “a big ask” with staffing issues as they were. She said the respondent accepted that the claimant had an interest in these issues and so they looked to see whether an alternative course could be offered. She had suggested that the NEBOSH course could be done with fewer days off and that it might be possible for the claimant to be released from work early to attend any evening sessions if necessary. She stated that the claimant’s response was that he wanted total release to do the stage 3 course and that no other course was of interest to him. This was confirmed by the claimant’s evidence to the Tribunal.

The request to undertake the stage 3 course by the claimant was renewed in July 2010 and Ms Grant sent a reply to that request on 6 August 2010, setting out the reasons why the course was not approved. In that letter she set out the training the claimant had already received and that the internal safety representative training course was similar to the course provided for the respondent’s own managers and supervisors. In addition she pointed out that the claimant was released to attend the annual internal refresher course and conferences. She went on to say that the corporate HSE manager had been asked to review the proposal and that he was of the view that the course content, much of which was not focused on Health and Safety, was inappropriate for the function of safety representation within the claimant’s sphere of interest within the respondent company and would add little to his skills as a Chairman of the Railway Operations Health and Safety Committee. Her letter went on to reiterate that IT training could be offered through the respondent’s own internal IT training. The last paragraph of the letter stated that:-

“As we have previously discussed with [the claimant], should he, as part of his personal development plan, wish to undertake personal study he could apply via the company voluntary education scheme. This would inevitably involve [the claimant] having to arrange duties, etc. with his colleagues to enable attendance as per the above.”

Ms Grant’s evidence was that this was a reference to the scheme available for the NEBOSH certificate, which had been discussed with the claimant at earlier meetings.

The Relevant Law

18. The relevant law which relates to training for Health and Safety representatives is to be found in the Safety Representatives and Safety Committees Regulations (Northern Ireland) 1979 which are regulations made under the Health and Safety at Work (Northern Ireland) Order 1978. Regulation 4 of those regulations provides as follows:-

“4(i) In addition to his function under Article 4 (iv) of the Order of 1978 to represent the employees in consultations with the employer under Article 4 (v) of the Order of 1978 (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 who he represents relating to that employee’s health, safety or welfare at work;

(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 Regulations 5, 6 and 7;

(f) To represent the employees he has appointed to represent in consultations at the work place with inspectors of any enforcing authorities;

(g) To receive information from inspectors in accordance with Article 30(8)(d) of the Order of 1978; and

(h) To attend meetings of Safety Committee where he attends in his capacity as a Safety Representative in connection with any of the above functions; but

(i) Without prejudice to Articles 8(d) and 9(d) of the Order of 1978, no function given to a Safety Representative by this paragraph shall be construed as imposing any duty on him;

(ii) Any 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 Article 4(4) of the Order of 1978 and paragraph 1 (a) - (h);

(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 Agency of Northern Ireland under Article 18(e) of the Order of 1978.”

19. A Code of Practice has been made under the Health and Safety at Work (Northern Ireland) Order 1978 which relates to the functions of Safety Representatives and their time off to attend training. The Code of Practice deals in particular with time off for training of Safety Representatives and sets out at paragraph 6 on page 24 as follows:

“As soon as possible after their appointment Safety Representatives should be permitted time off with pay to attend basic training facilities approved by the Northern Ireland Committee of the Irish Congress of Trade Unions 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.”

Paragraph 7 goes on to set out that basic training should take into account the functions of Safety Representatives placed on them in the regulations. Later in paragraph 7 it is stated:

“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. It is also noted that Trade Unions 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, when the Union wishes a Safety Representative to receive training relevant to his function. It is also noted that 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.”

21. The claimant’s representatives opened a number of decided cases to the Tribunal. In the case of Catten v The Department of Social Security ET 2200805/2000, an Employment Tribunal decided that the respondent had failed to permit the claimant to take time off in accordance with the English equivalent regulations of Regulation 4(2)(b) of the 1978 regulations in Northern Ireland. That case quotes with approval the decision in White -v- Pressed Steel Fisher [1980] IRLR 176 where Mr Justice Slynn said, “The Tribunal and the employers must have regard to the provision of any relevant code. But in our judgment the question whether time off is necessary to undergo such training as is reasonable in all 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. They also quoted Rama -v- South West Trains [1997] EWHC Admin 976 where Mr Justice Forbes said “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……”

22. We were also referred to the decision of Judge Peter Clarke in Walker -v- North Tees and Hartlepool NHS Trust [2008] UKEAT/0563/07 where it was indicated that there was a two stage test under Regulation 4(2)(b). First, is the training reasonable in the circumstances? Secondly, has the employer permitted such time off as is necessary for the safety representative to undergo such training?

23. In Duthie -v- Bath and North East Somerset Council [2003] UKEAT 0561/02, the Employment Appeal Tribunal stated that a number of relevant factors needed to be taken into account before reaching a conclusion on training, including the contents of the course in question, whether it involves basic training, how it related to the particular functions that the employee was performing; whether the training would have assisted him in performing those particular functions; and whether the employer would be able to manage if the applicant took the time off. The EAT in that case indicated that the correct test for the Tribunal to apply was whether the employee’s request for paid time off to attend a Health and Safety training course was reasonable in all the circumstances.

24. We have noted these decisions, although we are also aware that they are of persuasive, rather than binding, authority.

Decision

25. Having considered the evidence in this case, we have also considered the regulations and the relevant case law. In particular, we have considered the two stage test advocated by Judge Peter Clarke in Walker, referred to above and the comments set out in Duthie.

26. Taking the relevant factors set out in Duthie, we agree that the overall circumstances need to be taken into account, not just the training itself. It seems clear that the training the claimant wished to take on the stage 3 course was certainly relevant to his functions as a Health and Safety Representative and would have assisted him in carrying out those tasks. Given that he had already completed the stage 1 and stage 2 Occupational Health and Safety course, it was not basic training and the claimant did not adduce any evidence that he had special responsibilities which required additional training: he was chair of a Management/staff committee, but it was proposed the chairmanship would rotate between union and management, so the position was not permanent. However the respondent gave evidence, which was not disputed by the claimant, suggesting that the same level of training could be achieved by taking a different course which would have required less time off work, namely 12 days for the NEBOSH course, which is widely recognised. The respondent had also made proposals, which had not been fully considered by the claimant, to offer IT training to the claimant which would have addressed the IT element of the stage 3 course. The claimant had dismissed these suggestions, arguing that he should be able to go on the stage 3 course because it was a union course and he was a union representative. Such an inflexible approach does not seem to us to be in keeping with the spirit of the legislation.

27. The other factor which should be taken into account, according to Duthie, is how the employee’s absence would affect the employer. Ms Grant’s evidence is relevant on this issue: she pointed out that if the claimant took the stage 3 course, he would need a day off each week for an academic year, which would require cover for his post for those days. This was a much bigger leave commitment than the 12 days required for the NEBOSH course, plus time for IT training. If no relief staff were available, staff would have to be asked to work overtime to cover his duties, which would have cost implications for the respondent. While the costs argument should be treated with caution, given that it could be used to restrict relevant training, we believe that employers are entitled to consider whether the same training, or equivalent training , can be delivered more efficiently, so as to minimise the time off needed and thus reduce the potential disruption to the employer.

28. The point was also made that the claimant was only one of 70 Health and Safety representatives amongst the respondent’s staff, many of whom had not yet completed the stage 1 or stage 2 courses. Mr Humphrey stated that in fairness to those staff and to the unions they represented, he did not consider it appropriate to approve a stage 3 course when so many Health and Safety reps had not had the opportunity to complete initial courses. In accordance with the guidance in Duthie, we agree that these are relevant considerations.

29. The respondent did not argue that the content of the training sought by the claimant was unreasonable, but did contest the way in which the claimant was insisting that he receive such training and in particular, the time involved. In response to the first question, whether the training is reasonable in the circumstances, we believe that while both parties were content with the content of the training, the respondent had reasonably sought to consider whether the training could be achieved with less time off, which would have a lesser impact on its operations. We find therefore that the training sought (in that the claimant was insisting on taking a union-sponsored course which would have involved a much bigger leave commitment than the NEBOSH course) was not reasonable in all the circumstances.

30. On the second question, whether the employer had permitted such time off as was necessary for the claimant to undergo training, we believe that the proposals made by the employer, which would have allowed the claimant time off to take the NEBOSH course and undertake in-house IT training, would have given the claimant the time off which was necessary to follow the training he wanted. It would not have been in the form of the ICTU course, which was the reason it was rejected by the claimant, but we do not believe the legislation requires employers to provide time off for additional training in a form stipulated by the Health and Safety Representative concerned. Accordingly, we answer the second question in the affirmative and the claimant’s claim is dismissed.

Chairman:

Date and place of hearing: 25 February 2011, Belfast.

Date decision recorded in register and issued to parties: