Appeal No. UKEAT/0512/08/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 6 March 2009

Before
HIS HONOUR JUDGE McMULLEN QC
MR K EDMONDSON JP
DR B V FITZGERALD MBE LLD FRSA

MS H M CALDER	CLAIMANT

THE SECRETARY OF STATE FOR WORK AND PENSIONS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS H M CALDER
(The Appellant in Person)	
For the Respondent	MS LOUISE CHUDLEIGH
(of Counsel)
Instructed by: 
Messrs Field Fisher Waterhouse LLP Solicitors
35 Vine Street 
London  EC3N 2AA	

SUMMARY
TIME OFF:  Trade union activities
PART TIME WORKERS
Appeal in respect of the alleged failure to permit the Appellant to take time off in accordance with Regulation 4(2) of the Safety Representatives and Safety Committees Regulations 1977 dismissed since although there was a dispute about the reasonableness of the request, the course was not “in working hours” since it fell on a day when the Appellant was not required to work.

Appeal in respect of the Appellant’s claim that she was treated less favourably on the grounds of being a part-time worker contrary to Regulation 5 of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 allowed and the Employment Tribunal Judgment set aside and remitted to the same Employment Tribunal.  The Employment Tribunal did not make findings on the aptness of the comparators or give reasons for its finding that management’s decision was not made on the grounds of the Appellant’s part-time status.

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about the right of a trade union representative to attend a health and safety training course.  It also relates to an Employment Tribunal’s duty to give reasons.  The judgment represents the views of all three members.  We will refer to the parties as the Claimant and the Respondent.

Introduction
2.	It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal sitting at Manchester chaired by Employment Judge Vinecombe over two days registered with reasons on 6 February 2008 following an oral judgment on the second day.  The Claimant was represented by a lay trade union representative but today represents herself.  The Respondent has been represented throughout by Ms Louise Chudleigh of Counsel.  

3.	The issue for the Tribunal was this:
“The claimant alleged that the respondent was in breach of regulation 4(2) Safety Representatives and Safety Committee Regulations 1977 because the respondent refused her application for special leave to attend a Stage 3 Health & Safety Representatives Training Course.  The claimant also alleged less favourable treatment contrary to regulation 5 Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.  The respondent denied the allegations.”

The Tribunal dismissed the Claimant’s claim under both heads.  She appeals following direction of this case by Elias P on the sift.

The legislation
4.	The relevant provisions of the legislation are not in dispute and are as follow.  Regulation 4(2) of the Safety Representatives and Safety Committee Regulations 1977 says this:
“4(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 -
(a) …
(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 Commission under section 16 of the 1974 Act.”

A code of practice supports the interpretation of those provisions.

5.	The protection from discrimination of part-time workers is provided by the Part-time Workers Prevention of Less Favourable Treatment Regulations 2000, of which regulation 5 provides as follows 
“5.Less favourable treatment of part-time workers
(1)	A part-time worker has the right not to be treated by his employer less favourably than the employer treats a comparable full-time worker ‑
(a)	as regards the terms of his contract; or
(b) 	by being subjected to any other detriment by any act, or deliberate failure to act, of his employer.
(2)	The right conferred by paragraph (1) applies only if ‑
(a)	the treatment is on the ground that the worker is a part-time worker, and
(b)	the treatment is not justified on objective grounds.
(3)	In determining whether a part-time worker has been treated less favourably than a comparable full-time worker the pro rata principle shall be applied unless it is inappropriate.
(4)	A part-time worker paid at a lower rate for overtime worked by him in a period than a comparable full-time worker is or would be paid for overtime worked by him in the same period shall not, for that reason, be regarded as treated less favourably than the comparable full-time worker where, or to the extent that, the total number of hours worked by the part‑time worker in the period, including overtime, does not exceed the number of hours the comparable full-time worker is required to work in the period, disregarding absences from work and overtime”

6.	The pro-rata principle is a way of ensuring a fair comparison between people who work different hours but in the same endeavour.  The remedy for breach of the health and safety regulations is a claim to an Employment Tribunal and an award of compensation; and in respect of the breach of the part-time workers regulations, a declaration, compensation and/or a recommendation that the employer take action to remedy the situation.  There is also a code published by Acas on time off which provides in relevant part as follows at paragraph 15:
“There is no statutory requirement to pay for time off where the duty is carried out at a time when the official would not otherwise have been at work, but staff who work part-time will be entitled to be paid if staff who work full-time would be entitled to be paid.  In all cases, the amount of time off must be reasonable.”

The Employment Tribunal applied Hairsine v Kingston upon Hull City Council [1992] ICR 212 EAT.

The facts
7.	The Respondent is the government department responsible for, as its name implies, the provision of officers to deal with employment and unemployment.  The Claimant began her employment with it in 1997 and is an Executive Officer, management pay band C.  She is also Health and Safety Secretary for PCS, West London Branch, a major trade union in the public sector.  She works part-time, Tuesdays, Wednesdays and Thursdays.  

8.	On 14 December 2006, she applied to the Respondent to attend the Stage 3 Health and Safety Representatives Training Course provided under the aegis of the TUC.  This was held on Fridays for 36 weeks.  The Respondent refused permission, if such were needed.  It took the view that because of the nature of the Claimant’s duties and of the nature of the course curriculum it was not reasonable for her to go on the course nor necessary for her duties.

9.	The Claimant did go on the course funded by her trade union and so in each week she worked her normal three days and attended the course.  The claim before the Employment Tribunal was that she had been discriminated against contrary to the part-time workers regulations. She presented in her claim form the names of two individuals who were also lay officers of the union who had attended the course with the permission of the Respondent and had been paid, they being the male full-time workers.  There was no claim under the Sex Discrimination Act 1975.  The Claimant also contended that the Respondent had breached the duty to permit reasonable time off with pay under the 1977 regulations.

10.	The Tribunal’s conclusions were brief, and Ms Chudleigh volunteered that these were not as full as the case justified, for it had taken two days, and a considerable amount of evidence had been deployed.  The finding by the Employment Tribunal on the health and safety regulations is this:
“12.  	Having found that Fridays were not part of the claimant’s working hours it follows that there was no refusal by the respondent to permit time off during the claimant’s working hours and consequently no breach of regulation 4(2) Safety Representatives & Safety Committee Regulations 1977. 
13.  	The Tribunal considered whether or not the claimant was entitled to be paid for the time that she spent attending the Stage 3 course although she did so in her own time and not during her normal working hours.  The Tribunal concluded that she was not entitled to be paid for time when she would not normally be paid McCartan v Lancashire Health Authority ET case No. 22636/80 and Hairsine v Kingston upon Hull City Council 1992 ICR 212 applied.”

11.	As to the part-time regulations, the Tribunal said this:
“The second issue for the Tribunal to determine was whether the respondent was in breach of regulation 5 Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000.  The unchallenged evidence was that the part-time status of the claimant played no part in the decision not to allow the claimant to go on the course and accordingly the Tribunal found there was no breach of regulation 5.”

The Claimant’s case
12.	In a carefully constructed skeleton argument, the Claimant makes two points which she made below, that her case fell squarely within the 1977 regulations and that the Tribunal failed to make a finding upon the central issue of dispute which was the reasonableness of her request to take time off with pay.  She accepts that the whole of her claim is based upon time which is her own, that is Fridays.  As to the discrimination claim, she contends that the Tribunal failed to make a decision upon the aptness for comparison of the two named comparators and that the Tribunal was wrong to make the finding that part-time work played no part in the employer’s decision.  She accepts that the use by the Tribunal of the word “unchallenged” is correct. The way in which the questions were asked by her representative at the Employment Tribunal was not to challenge the mindset of the managers on the ground that they had deliberately taken steps to do her down as a part-time worker.

The Respondent’s case
13.	On behalf of the Respondent, it is contended that the case does not engage the 1977 regulations unless there has been permission, considered and refused.  Secondly, as a matter of construction the regulations are not engaged unless there is a claim for time off during working hours, and that was not the position here.  That explains the shortness of the reasons.  As to the claim under the part-time provisions, the finding that the part-time status of the Claimant played no part in the decision corresponds to a finding that the regulation 5 was not engaged either.

Discussion and conclusions
14.	We accept the submissions of Ms Chudleigh in part in relation to the health and safety regulations.  This case clearly could not get off the ground under the regulations because there was no contention that the Respondent has refused to permit the Claimant to attend.  Permission was not required since the course took place on Fridays. The short answer to the claim is she was not asking for the employer’s co-operation in respect of time off during working hours, irrespective of whether it is a relevant or inapt course for her to do.  Since the course did not take place during working hours regulation 4(2) did not come into play.  So, although it may have taken up a good deal of time at the Employment Tribunal and although the reasons are jejune on this matter, we accept Ms Chudleigh’s second point. Unless there is a refusal to permit time off from working hours these regulations do not come into play.

15.	We do not accept that the approach to the construction of permission is correct and that the sequence therefore should be to identify what the working hours are and then to consider, in the circumstances, if permission was sought for time off during working hours, whether the training proposed was reasonable in all the circumstances and then was it necessary for her to go during working hours. On this basis, therefore, we dismiss the appeal.

16.	We turn to the part-time workers claim.  We have noted that there was no claim for sex discrimination, although some of the authorities relate to sex discrimination and equal pay.  See, for example, Davis v Neath Port Talbot [1999] IRLR 769 and Arbeiterwohlfahrt der Stadt Berlin v Bötel C/360/90 [1992] IRLR 423 ECJ.  Broadly speaking, it would be sex discriminatory for pay to be not afforded to a trade union representative where it was provided to men since taking part in training is equivalent to work.  

17.	The evidence brought by the Claimant was that the two male comparators were apt comparisons, the only relevant difference between the Claimant and those two being her part-time and their full-time status.  The Claimant argued that the Respondent would not have deducted pay when the two men went on the course during their normal working week. 

18.	In our judgment, the Employment Tribunal has failed to set out its reasoning.  The primary function of the Tribunal under this regulation is to consider whether the full-time workers cited by the Claimant are comparable full-time workers within the meaning of regulation 5(1).  The case cannot proceed until that decision is made with reasons, and no reasons are given for rejecting the Claimant’s case as to those comparisons.  

19.	The second issue is whether regulation 5(2) is satisfied.  Although there is a firm finding that the Claimant’s part-time status played no part in the management decision, and that is said to be based upon evidence about that matter being unchallenged, in our judgment, that finding is unsafe in the absence of clear reasons as to the comparability of the two men.  If the two men meet the apt comparison test in regulation 5(1), then focus must be upon the decision as to the ground on which they were given. The Claimant was not paid for a course which they were permitted to go on and which, on the evidence before the Tribunal, the employers would not have permitted the Claimant to go on in any case.  It is submitted to us that no argument was raised by the employer as to justification under regulation 5(2)(b).

20.	We have decided that this case should be allowed and remitted.  Mrs Calder does not ask for it to go to a different Tribunal.  Ms Chudleigh submits that it should go back to the same one.  It is these days exceptional for remission to the same Tribunal, but we pay attention to the factors in Sinclair Roche & Temperley v Heard Nos 1 and 2. [2004] IRLR 763 EAT.  This is a case where we have upheld the Tribunal’s judgment on half of the case.  The Tribunal has been criticised for not giving adequate reasons and for not setting out its decision on part of the provision in regulation 5(2). There will be a controlled remission to the same Employment Tribunal for it to hear the case in the light of our direction under regulation 5(2) and make a decision with reasons on the Claimant’s claim under the regulations.  The judgment is set aside and it will be free to make the same judgment or to make a different judgment.

21.	Finally, we mention the two codes of practice.  There is an anomaly in the Code of Practice on Time Off, published in 2003 by Acas, as compared with the 1978 code for safety representatives, for the passage we have cited is not replicated in the earlier code and it is that code which we are applying in relation to the health and safety claim.  The 2003 code is not the one to be operated here and yet we note the different provisions which would have been more helpful to the Claimant although probably not conclusive.