Duthie v Bath & North East Somerset Council

Entitlement to paid time off for safety-representative training under regulation 4(2) involves a two-stage inquiry: whether further training is reasonable in all the circumstances and, if so, whether the time off is necessary for that course. An appellate court should intervene in an Employment Tribunal’s factual decision only for an error of law, including failure to apply the governing statutory and regulatory framework, or for a perverse conclusion. A different view of the facts is insufficient. The consultation duty under section 2(6) did not create an arguable point of law. Permission to appeal was refused.

The appellant employee claimed that his employer had failed to permit time off under regulation 2(4) of the Safety Representatives and Safety Committees Regulations 1977, made under section 2(4) of the Health and Safety at Work Act 1974. The substantive time-off provision discussed was regulation 4(2).

An Employment Tribunal initially found against the appellant. The Employment Appeal Tribunal reversed that decision because the wrong legal test had been applied and remitted the matter to a differently constituted Tribunal. That Tribunal again found against the appellant. The Employment Appeal Tribunal held at a preliminary hearing that there was no arguable error of law. The central issue before the Court of Appeal was whether the Tribunal had misapplied the law or reached a perverse factual conclusion.

1. Application refused. The appellant was refused permission to appeal from the Employment Appeal Tribunal’s decision.
2. Under regulation 4(2) of the Safety Representatives and Safety Committees Regulations 1977, the correct inquiry is two-stage. The tribunal must first decide whether further training is reasonable in all the circumstances. If it is, the employee is entitled to such paid time off during working hours as is necessary for that course.
3. Section 2(6) of the Health and Safety at Work Act 1974 imposes a duty to consult safety representatives with a view to effective cooperation in promoting and developing health and safety measures and checking their effectiveness. Having regard to the Act, the regulations, the relevant Code and Council Directive 89/391/EEC, Article 12, the Employment Appeal Tribunal was right to conclude that no arguable point arose from the alleged interrelationship between section 2(4) and section 2(6).
4. The real issue was whether the Employment Tribunal had applied the law correctly or had reached a perverse conclusion. The Tribunal had approached the matter in accordance with the relevant statutory, regulatory and other materials. The possibility that a differently constituted tribunal, or the Court of Appeal, might have reached a different view of the facts was insufficient. No error of law or perversity was shown.
5. The issues of res judicata and issue estoppel were not relied on as the basis of the Employment Appeal Tribunal’s decision and therefore did not require determination.

1. Court of Appeal (Civil Division) — On 9 June 2004, refused permission to appeal. [2004] EWCA Civ 1194
2. Employment Appeal Tribunal — On 8 March 2004, held at a preliminary hearing that there was no arguable point of law warranting interference with the Employment Tribunal’s decision.
3. Employment Tribunal — After remission, following an earlier Employment Appeal Tribunal decision that the wrong test had been applied, found against the appellant on the facts after hearings on 6 and 7 October 2003.