Howlett v Royal Mail Group Ltd (Health & Safety)

Entitlement to paid time off for a safety representative under Safety Representatives and Safety Committees Regulations 1977 is confined to the time off which the employer has permitted for representative functions. The payment must reflect the work the representative would ordinarily have done during that released time. It does not guarantee preservation of all previous earnings, including voluntary overtime which the representative remains free to undertake.

Accordingly, where release is for normal weekday hours, Sunday engineering overtime is not time off for which payment is due under Schedule 2, even if the representative’s overall earnings fall after moving to full-time representative duties.

The claimant, a Royal Mail engineer and safety representative, had formerly received a 60% release from weekday engineering work to perform representative functions. Under a later collective arrangement he became a full-time safety representative, working Monday to Friday on those duties.

He was no longer scheduled for one-in-four Sunday engineering overtime shifts, which had previously increased his pay. The Employment Tribunal found that Sunday overtime was voluntary and remained available to him. It rejected his claim under the Safety Representatives and Safety Committees Regulations 1977.

On appeal, the central issue was whether Schedule 2 required payment replacing the lost opportunity for Sunday overtime.

1. Appeal dismissed. Regulation 4(2) and Schedule 2 of the Safety Representatives and Safety Committees Regulations 1977 focus on the time off which an employer permits a safety representative to take in order to perform representative functions.
2. The statutory payment obligation is to pay the representative for that released time, or what the representative would have earned by working during it. It does not require the employer to preserve the representative’s previous overall remuneration.
3. On the Tribunal’s findings, the claimant was released only from normal Monday-to-Friday work. Sunday engineering overtime was voluntary. He had not been given time off from Sunday work, and remained free to undertake that work and receive overtime pay.
4. It was immaterial whether paragraph 1(a) or paragraph 1(b) of Schedule 2 governed the calculation of payment. On either route, the claimant’s entitlement was limited to payment for the weekday time from which he had been released.
5. Although the arrangements should have been made clearer in writing and the result was unfortunate for the claimant, the Tribunal could not construe the clear statutory wording to produce what might appear a fairer outcome. The Employment Tribunal’s decision stood.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the London (Central) Employment Tribunal.
• Employment Tribunal: rejected the claimant’s claim under the Safety Representatives and Safety Committees Regulations 1977; its decision was sent to the claimant on 17 April 2013.