Appeal No. UKEAT/0249/05/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 July 2005

Before
THE HONOURABLE MR JUSTICE BEAN
MS G MILLS MBE
MR J C SHRIGLEY

MS J DIAMOND	APPELLANT

PARK LANE COLLEGE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR M PALMER
(Of Counsel)
Instructed by:
Messrs Michael Scott and Co
Solicitors
27 Britannia Street
London
WC1X 9JP	
For the Respondent	MR R WHITE
(Of Counsel)
Instructed by:
First Assist Group Ltd
Marshall Court
Marshall Road
Sutton
Surrey
SM1 4DU 	

SUMMARY

Time off for TU activities.  Claimant lectured for 20 hours a week with 10 hours preparation.  She was allowed 12 Thursdays off with pay, to attend a TUC course, but on condition that this was all set against preparation time.  ET held that as a matter of law this did not infringe her Section 168 right to time off.  Held by Employment Appeal Tribunal, the issue was one of reasonableness.  Remitted to new ET 

Composition of ET – Section 168 claims for time off for TU activities should be heard by 3 members – not Chairman alone.

THE HONOURABLE MR JUSTICE BEAN

1.	The Claimant and Appellant is a lecturer at the Respondent College.  She has taken an active role in the affairs of her trade union, the National Association of Teachers in Further and Higher Education (NATFHE) and at all relevant times she was the Branch Secretary at the College.  In consequence of that position she had an allowance of 5 hours per week to carry out Trade Union duties.  No issue arose below and none arises before us on that time off.  

2.	In addition to that the Claimant sought to attend a TUC training course for Trade Union representatives.  The course ran between 23 September and 16 December 2004, and entailed one day’s study leave per week on 12 consecutive Thursdays.  It was not in dispute that the Claimant attended the course on the 12 consecutive Thursdays; that she was paid in full for those days; and that the course fell within the provisions of Section 168(2) of the Trade Union and Labour Relations (Consolidation) Act 1992.

3.	The Chairman found that the Claimant’s normal working week was 37 hours.  Of this time 20 hours a week were known as contact hours, mainly but not entirely teaching.  Her trade union duties, as we have already mentioned, were allocated 5 hours per week and the remaining 12 hours were described as ‘departmental work’, including the preparation which is an inherent part of the duties of a lecturer.

4.	The Claimant argued and the College agreed that a college lecturer will normally spend one hour in preparation for every two hours, in teaching.  On the Claimant’s case there were insufficient hours within her normal working week (if Thursdays were occupied on the TUC course) to carry out all of the preparation that was properly required for her teaching duties.  She said that she was required to carry out some of that preparation in her own time either by staying at work after normal hours or by working at home in the evening or at weekends.  She argued that the only way in she could obtain the full benefit of the right allowed by Section 168 was to reduce the amount of contact time.  For example, if contact time was reduced by 4 hours to 16 hours a week, the departmental duties would correspondingly reduce by 2 hours; and the overall reduction of 6 hours in the working week would enable her to complete her duties, including the trade union duties and the course, within the 37 hours which she was contracted to work.

5.	The employers’ advocate before the Tribunal adduced in evidence various timetables prepared by the College’s HR Director and some accompanying schedules.  As to this the Chairman said in paragraph 7 of his Decision:

“I do not consider that approaching this case on the basis of its own facts is either helpful or necessary.  I so indicated to both advocates during the course of closing submissions and both accepted that the issue before the Tribunal is, in reality, one of law and is not to be decided on the particular facts of the Claimant’s actual working pattern.  It seems to me that approaching the matter in that way would not be helpful either to the Claimant or the Respondent or to other persons who might be affected by this decision or any appeal from it.”

6.	The complaint to the Tribunal is made under Section 168 of the 1992 Act which, so far as material, states as follows:

“Time off for carrying out trade union duties
(1)	An employer shall permit an employee of his who is an official of an independent trade union recognised by the employer to take time off during his working hours for the purpose of carrying out [trade union duties] …
(2)	He shall also permit such an employee to take time off during his working hours for the purpose of undergoing training in aspects of industrial relations:-

(a)	relevant to the carrying out of such duties as are mentioned in subsection (1), and
(b)	approved by the Trades Union Congress or by the independent trade union of which he is an official.

(3)	The amount of time off which an employee is to be permitted to take under this Section and the purposes for which, the occasions on which and any conditions subject to which time off may be so taken are those that are reasonable in all the circumstances having regard to any relevant provisions of a Code of Practice issued by ACAS.
(4)	An employee may present a complaint to an industrial tribunal that his employer has failed to permit him to take time off as required by this Section.”

Section 169(1) provides that:

“An employer who permits an employee to take time off under Section 168 shall pay him for the time taken off pursuant to the permission”

Section 173(1) states that:

“For the purposes of Section 168 the working hours of an employee shall be taken to be any time when in accordance with his contract of employment he is required to be at work.”

7.	The ACAS Code of Practice on time off for Trade Union duties and activities provides in 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.”

8.	The Chairman was referred to a decision of an industrial tribunal under the chairmanship of Sir Diarmaid Conroy in Ratcliffe v Dorset County Council [1978] IRLR 191, a case from the days when the Industrial Relations Law Reports found space for the occasional decision of an industrial tribunal.  Mr Ratcliffe was employed as a lecturer at the Bournemouth and Poole College of Education.  He was required to work a 30-hour week and to work 38 weeks per year.  His time was divided between lecturing hours, normally 19 per week, departmental duties and “special responsibilities” such as sitting on committees and providing advice.  In May 1976, he was elected to Bournemouth Borough Council, where his meetings and committees duties required his presence on 48 half days in 1978.  He asked his employers for time off to carry out his public duties.  This was (and still is) unpaid, in contrast to time off for trade union duties.  The college reorganised his timetable in order to try to free him of teaching duties in the afternoons so that he could take time off to attend meetings.  But they still expected him to perform his full functions which meant that he had to do some work at home, in the evenings and at weekends.  He complained to the Tribunal that his right to take time off for public duties under what is now section 50 of the Employment Rights Act 1996 (then section 59 of the Employment Protection Act 1975) had been contravened.

9.	The Tribunal upheld his complaint and granted a declaration accordingly.  They took the view that by requiring him to complete his departmental duties in what would otherwise have been his own time the Respondents had contravened his statutory right to time off for public duties.  They found that since he still had to do the work at some other time his workload was not diminished and that “swapping time around is not giving time off”.

10.	Mr White, for the employers drew our attention to a case which was not cited to the Chairman below, the decision of this Appeal Tribunal in Hairsine v Kingston-Upon-Hull City Council [1992] IRLR 211.  Mr Hairsine was employed by the respondents as a pool attendant and swimming instructor at one of their sports centres.  He was also a TGWU shop steward.  In April 1989 he was given permission by the employers to attend a union course taking place on 12 consecutive Thursdays beginning on 13 April.  He was granted day release with pay for attendance at all sessions of the course when he would normally be at work.  His working week was a 39-hour week on a shift basis.  On 13 April he was rostered to work the late shift between 3.00 pm and 11.00 pm.  On that day he attended the first session of his union course from 9.00 am to 4.00 pm.  He arrived at the sports centre at 4.40 pm and stayed until 7.00 pm.  He then went home.  The employers maintained that he was not entitled to be paid for the entire shift because he had not worked between 7.00 pm and 11.00 pm.  An Industrial Tribunal dismissed his claim and his appeal to the Employment Appeal Tribunal was unsuccessful.  The Employment Appeal Tribunal held that time off with pay for what is now section 168 of the 1992 Act (then section 27 of the 1978 Act) relates to those hours during which the employee would normally have been at work, and which it was reasonable that he should be allowed to take off to enable him to carry out his trade union duties or attend a course.  Two conditions must therefore be satisfied.  The time off must be part of the employee’s working hours and it must be permitted by the employer for the purpose of enabling him to carry out his duties or attend a course.  If either condition cannot be met, it is not “time off” for which the employee is entitled to be paid.

11.	In paragraphs 26, 27 and 28 of this decision the then President, Wood J, said:

“26  The two industrial members sitting with me have a substantial number of years’ experience of the industrial scene dealing with these very issues, and it is their considered view, taken with the background of the guidance from ACAS, that arrangements which have been made between employers, shop stewards and trade unions in connection with s.27 training have been highly successful, due in no small part to its total flexibility.  It is almost impossible to seek to legislate for each and every permutation of facts and circumstances.  Section 27(2) emphasises the approach of ‘reasonable in all the circumstances having regard to the provisions of the Code’.  They emphasise that if the employer is not reasonable then the shop steward has a right to apply to an Industrial Tribunal, and this emphasises the need for flexibility and for a reasonable approach to the problems that may arise.  Moreover the wording of s.27(2) indicates that the issue before an Industrial Tribunal could relate to the amount of ‘time off’ or to payment in respect of it or to both.  This is the point which we have already made.  They would also emphasise the absence of reported cases as some indication that the cooperation between management and trade unions has been sensibly maintained and is to be encouraged.  This, in their view, is an area where confrontation has not emerged and where it should not be encouraged.  The application of rigid rules has no place in this situation.  The length of ‘time off’ is not necessarily the same as the hours spent enabling the employee to attend a course.  In considering reasonableness it must also be relevant to take into account not only the physical ability to attend, but also the importance of being able to benefit from the course itself.  All these aspects would be relevant for an Industrial Tribunal if the issue was whether the terms of the permission granted were reasonable.
27.  In support of their understanding of the practice at present being effected we give the following examples:
(a)  It has been the practice for many years for trade union courses to be arranged at the weekend so as to minimise the interruption of the work process.  In this case seemingly there is no need to seek permission to take time off because it is not interfering with those hours when the employee should be ‘at work’.  However, there may be occasions when a shop steward is involved in weekend work.
(b)  There may be occasions when there is a short course in the morning and where an employee is on shiftwork.  That course may extend over a number of weeks and his shifts may change.  In those circumstances the shifts are often re-arranged so as to minimise the interference with the working hours of the individual.
(c)  If a course takes place on a Saturday at the other end of the country or abroad, it may be reasonable and necessary that a shop steward is given time to travel on the previous day.  He might he given time off on a Friday afternoon.  If he is on shift work it may be reasonable to ask him to change to an early shift on that day so as to allow time for travel.
(d)  If a shop steward is on night duty it may very well be that he should be given a whole night off work so that he can sleep and attend his course on the following day.  If the course lasts all day and finishes in the late afternoon it may be reasonable to allow a second night off work because it could be considered dangerous if the employee fell asleep when working near moving machinery.
(e)  There may be occasions where there is the odd hour overlap one way or the other and an employer quite sensibly and reasonably does not require that hour to be worked.  Indeed it may be taken up in travelling time.  The Code of Practice envisages many different workplaces and patterns of work and it is impossible to expect that the hours spent on a course will necessarily take time out of the hours during which the shop steward is contracted to attend ‘at work’
(f)  The applicant might have argued to an Industrial Tribunal that to expect him to work for the whole of the evening shift was unreasonable, but he did not do so.
28  I am impressed by the approach of the industrial members, not only looked at from their own extensive experience but also from the history of the way that arrangements have in fact been made in practice.  Since its inception there have been only a very few cases involving s.27 and none on this particular issue.  I am also impressed by the fact that the present respondents have been operating for some years under their rules of practice which have been accepted by the trade unions involved.”

12.	The judgment goes on in paragraphs 30 and 33 to emphasise that the test is one of reasonableness.  We agree with the observations of our predecessors in Hairsine’s case about the test to be applied and the rationale of what is now Section 168.  As for the six examples in paragraph 27 we consider them very helpful, although not of course comprehensive and not to be treated as part of the statute.  

13.	At the conclusion of his judgment in the present case the learned Chairman in paragraph 15 held as follows:

“It seems to me that it is in the nature of any employment, whether it is artificially divided between contact time and departmental duties (as here) or whether, as is more normal, there is no such division, that an employee who is absent from work to attend a Trade Union course (or in the case of Mr Radcliffe, to carry out public duties) will necessarily not be able to spend the full number of contracted hours carrying out the work which is the subject matter of the contract of employment. Persons who choose to act as Councillors or as Trade Union representatives must appreciate that when they seek that role. If Parliament had intended that, in addition to the right to attend the relevant Trade Union course, the relevant contractual duties should be correspondingly reduced, it would have been simple in the extreme for there to be a subsection within Section 168 to that effect. As I read it, Section 168 does not purport to vary the contract of employment in any manner. It is simply provides that, if an employee is absent from work with the permission of the employer for a relevant purpose (as occurred here) then that employee is entitled to be paid. Some employers might be willing to make the concession which Mr Palmer contends should apply here.  Some employers might be equally unwilling to apply it. That is a matter for those parties. I hold that there is nothing in the section which requires the reduction in working duties for which Mr Palmer contends.”

14.	Mr Palmer had argued below that once the Claimant exercised her statutory right it was a condition binding on the Respondent College that it allowed the Claimant the variation to her contract which she sought in these proceedings.  The Chairman did not accept this.  He held that Section 168(3) restricts the Claimant’s rights under subsection (1), which would otherwise be unqualified, rather than imposing any additional duty on the Respondents.  We agree.

15.	Before us, however, it was common ground between Mr Palmer and Mr White that the facts should be analysed in a different way.  The College allowed the Claimant time off to attend the TUC course and paid her to do so but imposed a condition that she should complete her usual duties of preparation in her own time.  The issue therefore is whether that condition was reasonable in all the circumstances.  Mr White argued that in paragraph 15 of his judgment the Chairman found that it was.  But as we see it the Chairman appears to have considered whether the statute as a matter of principle required the reduction in working hours for which Mr Palmer was attending.  He held that the answer was no and that the claim therefore failed.  It is apparent from paragraph 7 of his judgment and the reference to the issue being one of law and not to be decided on the particular facts of the Claimant’s working pattern that he treated the issue as a point of principle.

16.	We do not consider that it was an issue of principle.  The question should have been: having regard to all the circumstances of the case, including the details of the Claimant’s duties, and to the Code of Practice, was it reasonable to make the grant of paid time off to attend the course on 12 consecutive Thursdays conditional on the Claimant’s departmental duties being completed in full, if necessary in her own time?  That question has not yet been answered and we consider that it is not for us to answer it.  
17.	We will therefore allow the appeal, set aside the finding of the Chairman and remit the case to a freshly constituted Employment Tribunal.  That Tribunal should consist of a Chairman and two lay members.  This is for two reasons.  The first is that, as Wood J indicated in Hairsine’s case, the practical experience of lay members, whether in the Employment Tribunal or this Appeal Tribunal, is invaluable in a case of this kind.  

18.	The second reason is that it seems to us that the Chairman had no jurisdiction to hear this claim alone unless both parties had given their written consent in accordance with Section 4(3)(e) of the Employment Tribunals Act 1996.  There is no indication in the judgment that the parties had done so.  In any event we consider for the reasons we have given, that the Tribunal which rehears this case should be a Tribunal of three.  We are grateful to both Counsel for their admirably succinct and focussed submissions.