Right to time off for health and safety representatives
The Safety Representatives and Safety Committees Regulations 1977 give health and safety representatives the right to paid time off their usual role to carry out their duties as health and safety representatives.
The recent Employment Appeal Tribunal case of Mr A P Rowe v London Underground Ltd UKEAT/0125/16/JO looked at the compensation payable where an employer refuses to allow paid time off.
Health and safety investigation
The claimant was employed as a train operator for London Underground and was also safety representative for the RMT trade union. In June 2014, the claimant, along with ASLEF safety representative Ms Tily, made a request to carry out a health and safety investigation on a broken conductor rail. The respondent initially refused paid time off to carry out the investigation. However, after another request by Ms Tily, in September 2014 the respondent allowed paid time off and apologised for the delay in agreeing to it.
Employment Tribunal decision
The Employment Tribunal held that the original refusal by the respondent amounted to a breach of Reg 4(2) of the Safety Regulations. However, the tribunal decided against awarding compensation.
Regulation 11 (3) of the Safety Regulations allows the tribunal to make an award “of such amount as the tribunal considers just and equitable in all the circumstances having regard to the employer’s default in failing to permit time off to be taken by the employee and to any loss sustained by the employee which is attributable to the matters complained of.”
The ET’s decision was that as there was no notable or significant injury to feelings following the initial refusal, that an award would not be just and equitable on the facts of the case. Mr Rowe appealed.
The Employment Appeals Tribunal agreed with the Employment Tribunal. In reaching a decision, Judge Eady considered a new point raised by the respondent, which was that as a matter of principle no award for injury to feelings could be made under Reg 11. The comments that were made in light of this point were expressed as ‘strictly obiter’, i.e. not necessary to decide the particular case and so would not bind future tribunals. However, it is likely that tribunals would follow this decision. The EAT looked at employee rights under different statutory provisions, namely the Employment Rights Act 1996, the Working Time Regulations 1998 and the Equality Act 2010. It was observed that “all the cases in which injury to feelings awards have been allowed have involved some form of discrimination.” Consequently, as “the detriment [under Reg 4 (2) of the Safety Regulations] is not suffered because of the employee’s status as a safety representative: that status is necessary for the right but does not explain the breach of that right; the employer has denied the right to paid time off but has not thereby discriminated”; it was therefore concluded that Reg 11 (3) does not permit an award for injury to feelings.
The effect of this judgment may be to severely limit the compensation that could be awarded under the Safety Regulations. This is for three main reasons:
- The provision was already drafted to be a discretionary award that an ET could make and even then only if it is believed it to be “just and equitable” to do so;
- Reg 11 (4) compensates the employee for what they should have been paid if they were not, during the period of time in which the investigation was undertaken. This is therefore not what Reg 11 (3) can compensate for; and
- In not compensating for any injury to feelings that could have been caused following the refusal, it is difficult to envisage what kind of loss can therefore be claimed under this provision, other than perhaps pay if the employee decides to investigate something in their own time.
Employers may welcome this decision, as it leaves the Safety Regulations rather toothless. However, there is likely a public interest in ensuring that health and safety risks are investigated promptly. This decision may encourage unscrupulous employers to dismiss requests for time off to investigate.
Posted on Mar 15th, 2017 by Lyons Davidson