Walker v North Tees and Hartlepool NHS Trust

The law gives recognized health and safety representatives the right to a reasonable amount of paid time to carry out their role, including time off for training. In Walker v North Tees and Hartlepool NHS Trust, the Employment Appeal Tribunal (EAT) said that tribunals have to decide whether an employer has given an employee the necessary amount of time off to undergo whatever training is “reasonable in all the circumstances”.

Mr Walker’s union, Unison, instructed Thompsons to act on his behalf.

Basic facts

Mr Walker was a Unison branch health and safety officer who had negotiated two half days per week to carry out his duties. If he needed more time, he had to ask his manager for permission. Sometimes he agreed, sometimes he did not.

In 2006, he asked to go on two training courses. The first - an accident and ill health investigation training course – required him to be away for one day per week for three weeks. The other – a health and safety training course - required attendance of one day per week for 36 weeks. His manager said he could not authorise these requests and referred him to personnel. It said his manager should decide, but noted that his current entitlement to time off should be enough to cover the courses.

Mr Walker complained to a tribunal that his employer had failed to give him time off under the Safety Representatives and Safety Committee Regulations 1977.

Relevant law

Regulation 4(2) of the Safety Representatives and Safety Committee Regulations 1977 states that:

“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) performing his functions under section 2(4) of the 1974 Act and paragraph 1(a) to (h) above;
(b) undergoing such training in aspects of those functions as may be reasonable in all the circumstances having regard to any relevant provisions of the 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.”

Tribunal decision

The tribunal said that it was reasonable for Mr Walker to attend the accident course, but that he could have done so during the allocated two half days. As for the health and safety course, it decided that, although it would have been reasonable for Mr Walker to attend, the Trust had not actually refused his request.

Given that it did not refuse and as he could have attended in the allocated time, the tribunal concluded that the Trust had not failed to allow him to attend the course contrary to the 1977 regulations. Mr Walker appealed this part of the decision.

EAT decision

The EAT said that the regulation, although in two parts, had to be read as a whole. Thus regulation 4(2)(a) referring to the performance of the safety representative’s functions had to be read alongside 4(2)(b) referring to their right to undergo training “in that function”.

On that basis, it concluded that the tribunal had asked the wrong question. Instead of focusing on the irrelevant issue of whether the Trust had refused Mr Walker’s request or not, it should have concentrated on:

  • whether two half days per week was enough time for him to carry out his role as safety representative and to do whatever training was reasonable, or
    whether the two half days per week was not enough time and he needed to take further time off.

If two half days per week was enough time, then he did not need the extra time off and the Trust was not in breach of the regulations. If the two half days did not give him enough time to do his work as safety representative, then it was in breach.