Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 2771/10

 

 

CLAIMANT: Eamon Farrell

 

RESPONDENTS: 1. Lorraine Livingston

2. Jason Foy

3. Department of Finance and Personnel

 

 

 

DECISION

 

It is the unanimous decision of the tribunal that the Department of Finance and Personnel’s decision not to grant the claimant paid time off to do a Stage III Diploma in Health and Safety was reasonable in all the circumstances.

 

 

Constitution of Tribunal:

 

Chairman: Ms W A Crooke

 

Members: Ms T Madden

Ms N Wright

 

 

Appearances:

 

The claimant was represented by Ms Wilma Stewart of NIPSA.

 

The respondent was represented by Mr Martin Wolfe, Barrister-at-Law, instructed by the Departmental Solicitors’ Office.

 

 

PRELIMINARY MATTERS

 

1. The tribunal noted that one response had been entered on behalf of all three respondents by the third respondent.  That response contained the assertion that the only appropriate respondent was the third respondent.  No point about this was raised by either party during the course of the hearing, but Ms Stewart informed the tribunal at the close of her submissions that the claimant had not received a copy of the respondent’s response to the tribunal.  Having investigated the matter, the tribunal found that this response had been sent out from the tribunal in the usual way under cover of a letter on 21 January 2011.  However, the tribunal provided Ms Stewart with a copy of that letter and the response and gave her time to consider whether there were any issues she wished to raise in connection with the response.  As she did not contest that the proper respondent to the claimant’s claim was the third respondent, the tribunal is dismissing the claim of the claimant against the first and second respondents.

SOURCES OF EVIDENCE

 

2. The claimant gave evidence on his own behalf and Mr Jason Foy, who was the HR Business partner of the respondent in the Departmental Human Resources Department, gave evidence on behalf of the respondent.

 

THE CLAIM AND THE DEFENCE

 

3. The claimant’s claim was that as the appointed NIPSA Health and Safety representative for NIPSA Branch 77, he was refused paid time off to attend the ICTU Diploma in Occupational Health and Safety Training Course (“Stage III training”).  NIPSA Branch 77 covered the following:-

 

a. Account NI.

 

b. Centre for Applied Learning.

 

c. Corporate HR.

 

d. Occupational Health Service.

 

e. Welfare Branch.

 

Between the date of the claimant’s appointment in November 2009 and June 2010, the claimant was deemed to have accumulated sufficient study credits to be equivalent to Stage I of Health and Safety Training, and was therefore entitled to automatic entry to Stage II Health and Safety Training.  The claimant received 10 days paid time off work to complete the Stage II Course.

 

The claimant claimed that the reasoning given to not allow him to attend this course was flawed and unlawful and he claimed that he should be allowed to attend the course during working hours with pay on the next available date.

 

The respondent denied that its decision was unreasonable and unlawful and contended that the reasoning by which the decision was reached was not flawed. 

 

The Relevant Law is found in Regulation 4(2)(b) of the Safety Representatives and Safety Committees Regulations (NI) 1979 (“the Regulations”) which states as follows:-

 

“(2) 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:-

 

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

THE FACTS

 

4. The claimant was appointed by NIPSA as a Health and Safety Representative for Branch 77 in or around November 2009.

 

5. On or about 14 June 2010 the claimant wrote to Lorraine Livingston of the Department of Finance and Personnel to request “paid release from work to attend a Diploma in Occupational Health and Safety...”

 

6. On or about 17 June 2010 the claimant wrote further to Ms Livingston with a more detailed explanation for his request acknowledging that the training that he sought was not “mandatory”, but contending that the training would be of “great benefit to both Account NI and myself”.

 

7. The claimant’s function as a safety representative was as follows:-

 

“(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 he represents relating to that employee’s health, safety or welfare at work;

 

(c) to make representations to the employer on matters arising out of paragraphs (a) and (e);

 

(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 was appointed to represent in consultations at the workplace with inspectors of any enforcing authority;

 

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

 

(h) to attend meetings of Safety Committees where he attends in his capacity as a safety representative in connection with any of the above functions;

 

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

8. When Lorraine Livingston received the claimant’s request she passed it to Mr Jason Foy, the Human Resources Business partner, to seek his advice upon it.  He in turn took advice from Ms Eleanor Steed, who was the Health and Safety Officer for the Department and Mr Eugene O’Loan, who was the Director in charge of Employment Law in the Departmental Solicitors’ Office.  His purpose in doing this was to gather together all the sources of information that he would require before he spoke to management.  While he had a previous role in a different job as a Trade Union Representative and a Health and Safety Representative, this was in a very different working environment, and he wanted to establish what the practice was in the respondent.

 

9. The essential question that he put to Ms Eleanor Steed was what was the standard practice with previous requests for training and in her view was the course necessary and reasonable for the role of the Health and Safety Representative in the respondent.  Ms Steed advised Mr Foy that the Stage III Diploma qualification would be beyond what was necessary for her role, although it was subsequently pointed out to the tribunal when the claimant’s representative made her submissions that the Stage III Diploma qualification was an equivalent qualification to that held by Ms Steed which was the NEBOSHC (national general certificate).  Furthermore, she contended that the claimant's area of work was categorised as “low risk”.  She supplied Mr Foy with a file of papers relating to the previous case of McCormick v Department of Finance and Personnel which was previously disposed of by a Compromised Agreement and Mr Foy read this.  Mr Foy also consulted the Regulations, the Health and Safety Executive Code of Practice and the Department’s Agreement with the Trade Unions and Functions of Safety Committees.  In addition to this research Mr Foy looked at whether or not the claimant had any training.  The essence of the advice that Mr Foy received from Mr Eugene O’Loan of the Departmental Solicitors’ Office told him to consider a range of factors to determine the issue of whether or not it was reasonable in all the circumstances for the claimant to have this training.  These were as follows:-

 

a. The size of Account NI.

 

b. Its need to have staff available to carry out its work.

 

c. The amount of time off already allowed.

 

d. Whether or not the Diploma is reasonably required for the officer to carry out his duties as a Safety Representative.

 

e. The amount of time already allowed for Trade Union study duties.

 

10. Mr O’Loan added that the claimant’s desire for personal development was not a relevant issue.  The tribunal accept this and have disregarded it as an issue in reaching this decision.  Neither was it clear to what extent the workload of Account NI was considered as the tribunal did not hear from Ms Livingston and the claimant contended she had told the investigation it was not an issue.  The tribunal does not consider that it is unreasonable to consider the issue of workload when considering whether or not to commit to releasing a person one day a week for thirty six weeks.  The claimant argued that the decision was flawed because the respondent did not understand what was the full range of organisations covered by him as a Health and Safety representative.  As the claimant in his application for the training said it would benefit both Account NI and himself this is not necessarily surprising, and the claimant did work in Account NI.

11. The respondent did not dispute that taking this course would increase the knowledge of the claimant but contended that taking this course with paid leave was not reasonable in all the circumstances.  The respondent had no objection to the claimant completing the course in his own time.  The sole issue of dispute between the parties was the question of whether or not it was reasonable in all the circumstances.  The respondent refused to grant the claimant the time off with pay and the claimant has brought these proceedings in respect of that refusal.

 

 

CONCLUSIONS

 

12. The claimant also lodged a grievance and while an investigation report was before the tribunal, no decision had yet been made by the respondent.  This has been of very limited value to the tribunal in reaching its decision.

 

13. The claimant’s representative referred to the previously decided tribunal cases of
Catten v  Department of Social Security Case No: 2200805/2000.  She also relied on the case of Debenham  v  KLM UK Engineering Ltd 2003 150122446/2003 (a decision of the EAT).  Ms Stewart contended that the claimant’s circumstances fell entirely within the factual matrix of each case.  Mr Wolfe however was able to distinguish each of these cases on the facts.  The Catten case involved a Health and Safety Representative who had attained her Stage I and Stage II qualifications a number of years previously and had returned to Health and Safety Representative duties after a gap of a number of years.  The Debenham case concerned a very different working environment  -  heavy engineering.  The tribunal considered on the facts that these authorities did not assist it in assessing what was reasonable in all the circumstances.  The only principle that the tribunal was able to ascertain was that reasonableness was a case sensitive issue.  What was reasonable in all the circumstances is a matter to be determined in each case.  In Ms Catten’s case the tribunal could easily see that it was reasonable for a Health and Safety Representative who had not undertaken these duties for a number of years to wish to refresh her qualifications.  This however was not the case in the claimant’s situation. 

 

The claimant was newly appointed as a Health and Safety Representative in November 2009 and by the time of his requests for Stage III training of 14 and 17 June 2010, he had undertaken amongst other courses which are not relevant for the consideration of this issue, Stage II Health and Safety training which had taken place over 10 weeks and for which he was allowed day release with pay per week.  In the case of Debenham, Mr Debenham worked in an entirely different industrial context involving complicated machinery with moving parts and hazardous substances.  Moreover, this was the third occasion upon which he had applied for training and had been turned down by his employer. 

 

On the facts of the present case, the claimant had up-to-date Health and Safety qualifications which had been taken in the months immediately preceding his application for the Stage III training.  He was involved in a largely office environment.  The claimant contended that he did not only operate in an office environment but that his responsibilities covered “lone workers”.  While the tribunal accepted that the claimant was keen to provide better representation to all persons for whom he had responsibility, it did take account of the fact that of the 300 persons covered by Branch 77, only a very small number (6 to 7 employees) could be characterised as “lone workers”.  Therefore, the tribunal does not consider that it is unreasonable of the respondent to consider that the greater majority of the claimant’s responsibility was office based.  For these reasons, we do not find that the cases of Catten and Debenham are of any real assistance in reaching our decision.  Neither do we consider that the respondent was wrong in not regarding the claimant as having any specialism within the terms of the Health and Safety Executive Code of Practice.

 

14. In reaching the respondent’s decision and indeed in reaching the decision of the tribunal the content of the Stage III course has been considered.  Mr Foy took some trouble to look into what this course would involve.  He was not provided with any detail by the claimant on precisely what the course would cover and how it would assist him to better fulfil his functions.  Essentially, while the respondent provided the tribunal with a document that gave some detail about the subjects covered in Stage I and Stage II Health and Safety Training, all the claimant provided by way of information on Stage III training was a half page summary headed ‘Diploma in Occupational Health and Safety’ which simply outlined the course structure and core study skill units.  This being the case, the tribunal endeavoured to ascertain from the claimant what it was about the Stage III course that would assist him to better fulfil his functions as Health and Safety Representative.  The claimant was given a number of opportunities to explain the value of this course to him and other than to say that it would enhance his skills and enable him to better represent his staff, he was not really able to go into the sort of detail that would have been helpful to the tribunal in assessing the reasonableness of his request.  The tribunal asked for specific examples and he cited the position of lone workers and persons suffering repeated stress injuries.  However, the claimant did not inform the tribunal what he would be able to do for these categories of employees after taking Stage III training that he could not have done with his existing training.  Moreover, the claimant confirmed that his fellow Health and Safety Representative, Mr William Ward, did not (to the claimant’s knowledge) have Stage III training.

 

15. Ms Stewart also submitted strongly that the claimant’s requests for training should be treated equally to the persons in another Department of the Northern Ireland Civil Service.  After enquiry, it appeared that the persons referred to were a number of representatives in the Child Support Agency.  These were employees who were in Branch 8 of NIPSA.  No oral evidence was given about these employees and the claimant relied on an undated copy certificate from Patrick McGinley who was the Secretary of Branch 8 of NIPSA.  The tribunal regarded this document as being of very little probative value.  On the face of it, it seems to say that five employees in the Child Support Agency had been granted special leave with pay to attend the Stage III course held at Belfast Institute of Further and Higher Education.  However, the certificate went on to say that two of those members were off on long-term sickness absence.  The tribunal noted an internal inconsistency in this short statement which was that on the one hand the statement said that “over the last 18 months or so Geoff Cowden, Brian Stewart, Patrick McGinley, Simon Duffy and Jim Connolly have all been doing the certificate in Occupational Health and Safety Stage III...” but on the other hand, closed by stating “Geoff Cowden and Patrick McGinley graduated from the course in November 2006...”.  The tribunal does not see how these two statements can be reconciled and has essentially disregarded this document in reaching its decision.  Furthermore, this document did not provide any details of the situation in which each of the comparators was working.  When pressed, Ms Stewart relied on Mr McGinley’s confirmation given to the investigating officer that all of the persons who did the course were entirely office based (as was the claimant in the view of the respondent, although the claimant did not necessarily agree).  However, the section of the report which the tribunal was referred did not give any details on when these persons in the Child Support Agency had obtained their Stage I and Stage II qualifications and whether in all the circumstances pertaining to them it was reasonable in all the circumstances for them to undertake Stage III training.  Therefore, we do not consider that these persons can be relied upon as comparators to the situation of the claimant pursuant to Ms Stewart’s submission that the claimant was entitled to be treated on equal terms to these representatives in the Child Support Agency and that it was important for him to be up-to-date to fulfil his functions and that he had to keep his skills and knowledge up-to-date through the Stage III training.  In summary, in applying the reasonableness test to the facts of this case the tribunal has taken account of the following matters:-

 

a. The claimant was appointed in November 2009 as a Health and Safety Representative and by June 2010, the time of his requests for Stage III training, he had undergone training including at least 10 weeks Health and Safety training to Stage II.  Therefore, within a seven month period he had been receiving training.

 

b. The claimant was not able to satisfactorily explain to the tribunal precisely how it would be reasonable for him to have Stage III training and the tribunal considers that if it is reasonable in all the circumstances for the claimant to have an expectation to receive paid leave for the course, it is reasonable that he should be able to explain with a reasonable amount of detail how the course would help him fulfil his functions more adequately than the Stage II training which he had already received.

 

c. The claimant did say that having an understanding of legislation would be of assistance, but the tribunal was not informed of any legislative changes in the area of Health and Safety law during the year 2010 concerning which it would have been necessary for the claimant to be updated.

 

d. The respondent did not discourage the claimant from doing the course in his own time and after its refusal to grant paid time off to do this course the respondent did allow the claimant time off to attend a three day Trade Union organised conference on stress.  Therefore, we have not attached any importance to the claimant’s assertion that the respondent did not want him to be better qualified than its own Health and Safety Officer, especially as the Stage III diploma qualification was admitted to be the equivalent of Ms Steed’s NEBOSHC qualification by Ms Stewart in her submissions.

 

e. The tribunal did not receive any detailed evidence about whether or not the workload of Account NI would have been adversely affected by the claimant’s absence on day release training for 36 weeks, although it does accept in theory that this is a reasonable factor for a respondent to take account of and reach its decision.  Therefore, we consider that in the circumstances of this case for the reasons set out above, and especially in view of the claimant’s recent receipt of training, it was not unreasonable for the respondent to refuse to grant paid time off for the claimant to undertake a Stage III diploma course.

 

 

 

Chairman:

 

Date and place of hearing: 14 and 15 June 2011, Belfast.

 

Date decision recorded in register and issued to parties: