Rowe v London Underground Ltd (Time Off)

Compensation under Regulation 11(3) of the Safety Representatives and Safety Committees Regulations 1977 is discretionary. An Employment Tribunal may award reasonable and proportionate reparation for an employer’s default even where the employee has not proved financial loss. The award must compensate the individual and must not operate as a fine or collective punishment.

An award for injury to feelings is unavailable for the non-discriminatory denial of a safety representative’s right to paid time off. That conclusion was obiter. A declaration may be sufficient remedy where the Tribunal permissibly concludes that no compensatory award is just and equitable on the facts.

The Claimant, a train operator and trade union-appointed safety representative, was initially refused paid time off to investigate a dangerous occurrence. The London (Central) Employment Tribunal held that the Respondent had breached the Safety Representatives and Safety Committees Regulations 1977. It made a declaration but awarded no compensation.

The Tribunal found that the Claimant had not proved injury to feelings. It also concluded that compensation was not just and equitable in light of the circumstances of the request, the Respondent’s misunderstanding, and its later acceptance of the request. The Claimant appealed, alleging legal error and perversity. The Respondent sought, for the first time on appeal, to contend that injury to feelings could never be awarded under Regulation 11(3).

1. Appeal dismissed. The Employment Tribunal had made no error of law and had not reached a perverse conclusion in declining compensation under Regulation 11(3) of the Safety Representatives and Safety Committees Regulations 1977.

2. The Respondent was not permitted to advance its new point that injury to feelings compensation was unavailable. New points are admitted on appeal only exceptionally. There was no pressing public interest, deception, unfair conduct, or other exceptional reason. The point could have been taken before the Employment Tribunal.

3. Obiter, Regulation 11(3) does not permit an award for injury to feelings for the non-discriminatory denial of paid time off to a safety representative. The availability of such awards in detriment claims derives from their discriminatory character. A safety representative’s status gives rise to the right, but denial of the right is not thereby discrimination because of that status.

4. Regulation 11(3) nevertheless has a substantial compensatory function. Following Skiggs v South West Trains Ltd [2005] IRLR 459, an Employment Tribunal may award reparation having regard to the employer’s default even without proof of financial or other identifiable loss. The discretion may cover non-pecuniary loss other than injury to feelings, but it cannot be exercised to impose a fine or collective punishment.

5. The mandatory remedy is a declaration; compensation is discretionary. The Tribunal had considered the employer’s default, the lack of precision in the initial request, the resulting misunderstanding, and the later resolution. A nil award was legally available. The Tribunal was entitled to find no proved injury and no basis for compensation that was just and equitable. Its conclusion did not meet the high perversity threshold.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal and upheld the decision to make no compensatory award.
• London (Central) Employment Tribunal: allowed the claim under the Safety Representatives and Safety Committees Regulations 1977, made a declaration of breach, and awarded no compensation.