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Cite as: [1992] UKEAT 618_91_109, [1992] UKEAT 618_91_0109

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BAILII case number: [1992] UKEAT 618_91_0109

Appeal No. EAT/618/91

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1st September 1992

Before

THE HONOURABLE MR JUSTICE WOOD MC (P)

MISS J W COLLERSON

MR J D DALY

LONDON AMBULANCE SERVICE APPELLANTS

A CHARLTON & OTHERS RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

APPEARANCES

For the Appellants MR P CLARK

(Of Counsel)

Messrs Capsticks

Solicitors

General Accident Building

77/83 Upper Richmond Road

London

SW15 2TT

For the Respondents MR J McMULLEN

(Of Counsel)

Messrs O H Parsons & Partners

Solicitors

3rd Floor

Sovereign House

212-224 Shaftesbury Avenue

London

WC2H 8PR

MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated 8th October 1990 Mr Roberts complained to an Industrial Tribunal of:

"Refusal by employer to grant pay for trade union duties on application by full-time officer."

There were three other Applicants, Mr McHattie, M/s Smith and Mr Charlton, who were bringing similar complaints and all four were heard together in June 1991 by an Industrial Tribunal sitting at London (South) under the Chairmanship of Mr Flint. All applicants are members of National Union of Public Employees (NUPE). The Respondents were the London Ambulance Service (LAS) which put in a Notice of Appearance setting out the history of the arrangements made for negotiations and collective bargaining. The Tribunal found in favour of the Applicants and the LAS appeals.

We have been told by Mr Clark, for the LAS that there is at least one other similar application to be heard next week before an industrial tribunal, and indeed there may be other applications also in train. We have therefore been asked to give an ex tempore Judgment in this case albeit it is the first case in which, as far as the Bar have been able to ascertain, the amended Section 27(1)(a) of the Employment Protection (Consolidation) Act 1978 has been considered by this Appeal Tribunal.

The negotiating structure, so far as the LAS is concerned, as we understand it, is as follows. At the top of the tree there are the Whitley Council negotiations and they are negotiations at national level. Beneath that is the Joint Consultative Committee. The Joint Consultative Committee is at three levels, the station level, the divisional level and a central level. It is clear from its constitution that various shop stewards, station stewards and unit stewards are elected and all those steward are in fact, officials of one of the four Trade Unions which are involved at the JCC. NUPE has probably the largest membership. It is recognised officially at the Whitley level. At the JCC level the members, at each of the various levels, are officials of one of those four Unions and by implication each of those four Unions is recognised by the London Ambulance Service. The issue of recognition was raised at an early stage in submissions but was ultimately conceded. Those particular facts were not found by the Tribunal. We have gathered them from the documentation and from the helpful submissions made to us by the Bar; we do not now believe that there is any issue on those basic facts. It is also to be pointed out, again although there were no specific findings by the Industrial Tribunal, that as indicated in the Notice of Appearance there are regular meetings of the JCC, probably held every four months, at various levels and of course meetings of Staff Side on dates prior to the joint meetings.

There is a further Committee which is a District Consultative Committee. This was established by NUPE and was solely a NUPE Committee. The evidence for that before the Industrial Tribunal was contained in a letter of the 14th August 1990 from Mr Barber, the Area Officer, to Mr Aylward, who is in charge of personnel at headquarters of the LAS. That letter set out the District Consultative Committee's structure. The relevant part of the letter reads thus:

"In addition the Executive Committee endorsed the establishment of a `District Co-ordinating Committee' which comprise the Chairpersons and Secretaries of each District Committee (10 individuals in all). The purpose of this `Executive Committee is to ensure that the activities of the District Committees are co-ordinated in a number of ways. For example;

(A)To monitor negotiations within each Division of the LAS as it affects our members.

(B)To develop a common industrial relations approach to the LAS via Divisions to ensure no confusion exists.

(C)To examine proposals from and submit proposals to the various forums within the LAS in respect of matters affecting the terms and conditions of our membership.

(D)To act as a forum for matters which would affect our membership as a result of National `Whitley' discussions and/or agreements.

(E)To receive reports from the NUPE National Ambulance Advisory Committee Member for London on matters of National and/or Regional importance which may/will affect our members conditions of service."

That letter having been sent containing a request that some 10 members should be allowed time off with pay, a reply was received on the 23rd August 1990 saying:

"Given the existing JCC structure and associated time-off arrangements only non-paid duty time off is available to the members of the Co-ordinating Committee."

Mr Barber indicated there was going to be a formal dispute raised. Then a further letter of 3rd October was sent by Mr Wilby which read:

"In the meantime however I cannot accept your application for time off with pay for your co-ordinating committee which is simply duplicating the existing agreed structure. I do not therefore accept that there is a dispute between us since for my part I am perfectly willing for the time being to work within the existing arrangements. You may feel, on reflection that the best way forward is for the staff side of the JCC to raise it when we next meet."

and as we know the Originating Applications followed shortly thereafter.

The correspondence was before the Industrial Tribunal and oral evidence was also given for the Respondents. The LAS called no evidence and relied simply on the evidence given before the Applicants and on the documentation.

Section 27(1)(a) was amended by the Employment Act 1989 and it is important in seeking to construe the present Section to see what was in existence before the amendment. The old former Section 27(1)(a) reads as follows:

"An employer shall permit an employee of his who is an official of an independent trade union recognised by him to take time off, subject to and in accordance with subsection (2), during the employee's working hours for the purpose of enabling him -

(a)to carry out -

(i)those duties of his as such an official which are concerned with industrial relations between his employer and any associated employer and their employees, or

(b)......."

(b) is not relevant for our present purposes.

The wording of the Section in that form has been considered in a number of Authorities. The first to which we need refer is the case of Sood v. GEC Elliott Process Automation Ltd [1980] ICR 1; it was a Reserved Decision of this Court under the Chairmanship, at that time, of Mr Justice Slynn, now Lord Slynn. The facts need not be recited from the headnote because the principles are carefully set out in a passage which is, in our judgment, of enormous importance to the approach to this whole aspect of the employment legislation and industrial relations before one actually looks at the detailed wording of any particular phrase. We refer, in particular, to page 7 at D and it reads through to page 8 at D:

"We share the view of the whole of the industrial tribunal that the provision permitting time off for the purpose of enabling a trade union official to carry out his duties does not of itself mean that he is to be allowed paid time off in order to prepare himself or to make himself a better trade union representative. That in our view is covered by section 57(1)(b). We also agree with the industrial tribunal that the phrase "industrial relations" is not to be narrowly construed. It is capable of covering many matters which arise in connection with the relationship of employer and employee. We do not accept Mr Pardoe's argument that the test of an official's duties is to be limited by the recognition. It seems to us that recognition identifies the trade union whose officials are entitled to claim time off under the section. It does not limit those duties to collective bargaining or to the precise terms of the recognition. We think that it is not the intention of Parliament that a trade union official should only have time off for the purpose of meetings with representatives of management. It seems to us that when questions involving industrial relations arise, a union official may well be entitled, as part of his duties, to take part in the planning of strategy and in discussing with other workers who are at the time negotiating with their employers, so long as the latter employers are associated with a particular trade union official's own employers. Nor do we accept the argument that a trade union official is only entitled to take time off for the purpose of negotiating where the employers have laid down the particular industrial relations structure as Mr Pardoe suggests. It seems to us that the carry out of the trade union official's duties for the purpose of the section can go wider than that. We do not accept the view of the second member of the industrial tribunal that the fact that these committees are set up purely by the trade unions, and for trade union functions, necessarily means that the duty of an official in connection with them prevents them from being duties concerned with industrial relations.

The intention of section 57 of the Employment Protection Act 1975 is that trade union officials should have time off to enable them to perform certain duties. We do not think that Parliament intended we should approach the section on the basis that the words should be narrowly construed. On the other hand it is clear from the words themselves that the duties must concern industrial relations between the official's employer and its employees, and an associated employer and the associated employer's employees, in a case where both employers and both sets of employees are concerned with the particular industrial relations problem. So, if two associated companies are negotiating with the trade union, or are involved in an industrial relations problem which will or may need to be negotiated, then it seems to us that the official's duties in connection with such negotiations may fall within the section.

There must however be some limit to the activities which fall within the section. In our view, the test is whether the time off is required to enable the official to carry out his duties in relation to a matter which arises in relations between employees and management. We do not consider that the mere exchange of information between the trade union officials themselves necessarily qualifies, even if those officials represent workers in a particular group of companies."

The second case is that of Beal v. Beecham [1982] ICR 460. Here again the facts need not be referred to. The passage to which we have already referred in Sood was expressly approved by the Court of Appeal, the leading Judgment being given by Lord Justice O'Connor. He has this to say at page 473B:

"The appeal tribunal held that the purpose of the products advisory committee meeting was to exchange information and experience, and so dismissed the appeal. Like the appeal tribunal I do not think it correct to limit `industrial relations' in section 27 of the Act of 1978 to mean collective bargaining as defined in section 32. If that had been the intention of Parliament, section 27 would have read `concerned with collective bargaining.'"

Before leaving Beal it is perhaps of assistance to see the way in which the learned Lord Justice approached the question of attending committees, at the bottom of page 469H, he said:

"I am clear that attendance at a meeting of the NAC called solely for the purpose of exchanging information would not qualify for time off with pay under section 27(1) but that would qualify for time off without pay under section 28 of the Act of 1978 as a trade union activity. The question is whether attendance at a meeting called to determine policies nationally qualifies under section 27(1)."

and it was thought that it did.

The other aspect of the old law which merits close attention is that the meetings and the attendance at the Committees and the purposes of the Committees must be sufficiently proximate to the duty defined under Section 27(1). This is dealt with in two Authorities, the first is Ashley v. Ministry of Defence [1984] ICR 298, we do not need to refer more than to the headnote where the following phrase is to be found:

"since it was open to the industrial tribunal to find on the facts of the case the advisory committee was too remote for any actual negotiations, the attendance at the meeting on the 5 March did not constitute the carrying out by the shop stewards of such of their duties as were concerned with industrial relations."

The importance of defining the duties and of the proximate relevance of the duties is referred in the case of British Bakers (Northern) Ltd v. Adlington & Others [1989] ICR 438 in the leading Judgment of Lord Justice Balcombe in the Court of Appeal at page 446 between B and D. The emphasis on that is also stressed by Lord Justice Kerr.

That being the "old" law and the approach of the Courts under the "old" law, including the approach of a fairly wide and generous construction to the wording, the Act was amended. The amended Act now reads as follows:

"S.27(1)(a) - An employer shall permit an employee of his who is an official of an independent trade union recognised by him to take time off, subject to and in accordance with subsection (2), during the employee's working hours for the purpose of enabling him -

[(a) to carry out

(i)any duties of his as such an official, which are concerned with negotiations with the employer that are related to or connected with any matters which fall within section 29(1) of the Trade Union and Labour Relations Act 1974 and in relation to which the trade union is recognised by the employer,"

Section 27(a)(ii) is immaterial.

That wording is quite different and we can see from Section 32 of the 1978 Act that the issue of recognition is connected to collective bargaining, so that when one speaks of collective bargaining and Section 29(1) of the 1974 Act that is substituted for the old former phrase of "industrial relations".

The second change is that there must now be recognition also in relation to those matters which fall within the collective bargaining. As a result of the concession and upon the facts of this case that issue does not arise here.

Thirdly, the question of the associated employer has disappeared.

Fourthly, the phrase "any duties" rather than "those duties" is now introduced.

The situation therefore, if anything, indicates that there is a relaxation in the number of duties which may be "related to or connected with" collective bargaining, but that there must be that nexus with collective bargaining as defined in Section 29(1) of the 1974 Act.

Reading the words literally it seems to us that if you are preparing to negotiate, and here we go back to the Judgment of Mr Justice Slynn in Sood, if you are actively preparing for negotiations in connection with collective bargaining then you are carrying out a duty of an official of a recognised trade union which concerns those negotiations. Provided that there is sufficient nexus between the collective bargaining and the duty involving preparation for that particular issue, it seems to us that the occasion falls within S.27(1)(a). There is no need for both sides to be present. The recognition of more than one Trade Union merely increases the possible requests for time off.

The Code of Practice has been mentioned and it is important in this connection to see the relevance of the Code of Practice. As a result of the amendment in the 1989 Employment Act a fresh Code of Practice was introduced in connection with Section 27. It was, in effect, after the dates relevant for the present case but it is interesting to see the approach of ACAS to the question of time-off under this Section. ACAS is under a duty to produce Codes of Practice by Section 6 of the Employment Protection Act 1975, in subsection (1) it reads:

"The Service may issue Codes of Practice containing such practical guidance as the Service thinks fit for the purpose of promoting the improvement of industrial relations."

but in subsection (2) the wording changes

"Without prejudice to the generality of subsection (1) above, the Service shall in one or more Codes of Practice, provide practical guidance on the following matters -

(a) . . . .

(b)the time off to be permitted by an employer -"

and it refers to Section 27 of the 1978 Act.

Paragraph 13 of the new Code reads as follows:

"The duties of an official of a recognised trade union must be connected with, or related to, negotiations or the performance of functions both in time and subject matter. Reasonable time may be sought for example to -

prepare for negotiations

inform members of progress

explain outcomes to members

prepare for meetings with the employer about matters to which the trade union has any representational right."

We do not rely upon it for our interpretation of this Section, but it is nevertheless interesting to note that the approach in the guidance given by ACAS under the "new" Code of Practice falls into line with our understanding of the wording of the "new" Section 27 bearing in mind the overall principles advanced in Sood and Beal under the "old" law.

Although it might seem at first sight that there were ample meetings of the Staff Side of the JCC before the joint meetings, nevertheless it may be that NUPE would wish to have its own meeting in the absence of other Trade Unions involved. The scope of S.27(1)(a) as we have understood it, is wide in its scope and is by its wording open to misuse. It is the provisions of the other parts of S.27 that maintain the balance, see Hairsine v. Kingston-upon-Hull City Council [1992] ICR 212. Merely because an occasion falls within S.27(1)(a) it does not necessarily follow that time off should be granted. As Mr Justice Slynn said in Sood at p.88E

"It does not follow that attendance at such meetings is required in order to enable the official to carry out his duties. Each case has to be looked at on its own facts."

The industrial members note that few difficulties have arisen under this section in the past and emphasise that, so far as good industrial relations are concerned, the object of the communication between an employer and the trade union should be to banish suspicion because that can only exacerbate a situation. Frankness is to be encouraged; an employer is entitled to seek sufficienly clear details of the issues involved in order to be able to take an informed decision in answer to a request - it is lack of precision in the present case which has caused us some hesitation; and the trade union, although obviously in some circumstances it will want to play its cards close to the chest, will nevertheless help if it is frank in its answers. I respectfully agree with them.

On application to an industrial tribunal there are the two issues. First of all, does it fall within 27(1)(a)? Secondly, the issue under Section 27(1)(b) of reasonableness. Even if strictly within the definition of 27(1)(a) there may well be issues such as, have there been recent meetings of the Collective Bargaining Committee, for want of a better definition, for instance the JCC here, so that to ask for a further meeting immediately thereafter without any particular agenda might be unreasonable? How often? For how long? What is the overall history? The actual timing? There are many factors which the Industrial Members feel can, and should be taken into account and merely because the duty falls within the definition of 27(1)(a) it will not necessarily be reasonable to grant it in certain circumstances.

In this case, turning to the Decision, criticism has been made of the drafting of paragraph 9 and as Mr McMullen has frankly conceded, there seems to be a slight illogicality in the middle of that paragraph. We respectfully agree, but the essence of the Decision if one reads it as a whole, is to be found in the last few lines of that paragraph where the Decision reads:

"Our view is that if preparatory or co-ordinating meetings are called for the genuine purpose of officials discussing their approach to forthcoming negotiations or their consideration as a co-ordinating body of negotiations which have or will take place in other bodies then time off must be given under section 27(1)."

If one could add to that "in connection with collective bargaining" then we would respectfully agree.

In any event at the end of the Decision in paragraph 12, and indeed the end of paragraph 11, this Industrial Tribunal does approach the matter on the basis of collective bargaining. We would therefore, first of all, agree with Mr McMullen that the real decision here is not in any way flawed in law, but even if it was and the correct approach were to be made then on the facts the Industrial Tribunal have found the meeting of this Consultative Committee fell within the wording of "related to or connected with any matters referred to as collective bargaining".

The first piece of evidence before the Tribunal was the letter of August. It is not for us to decide how we would have decided the case. The issue is was there evidence upon which this Industrial Tribunal could find that these activities of the District Consultative Committee were related to or connected with collective bargaining as defined. It is true that Mr Barber in his letter merely gives examples. However, if one takes those examples it seems to us that in any event headings (C) and (D) would fall within collective bargaining. We would have liked to have asked for further particulars of other matters and might very well not have reached the same conclusion as the Industrial Tribunal, but there was there sufficient evidence upon which they could reach the conclusion which they did and make the declaration which they did.

The result therefore is this, that this Industrial Tribunal may well take a view about the reasonableness of the refusal, or the extent of the paid time when they have heard rather more evidence about the matter, but so far as the declaration is concerned, in our judgment the Decision did not err in law and the Industrial Tribunal were entitled to reach the Decision that it did. It follows that this Appeal must be dismissed.