Case - Duthie v Bath & NE Somerset Council

[2003] ICR 1405 : Times, May 16, 2003, EAT - Michael Ford QC

Appeal by the applicant ('D') from an employment tribunal's decision on 20 May 2002. D was employed by the respondent ('the council') and was appointed as a Health and Safety Representative for his union. D had completed Trade Union Courses Stages 1 and 2 and, in late 2001, applied to go on a Stage 3 Trade Union course. The council indicated that it was not prepared to approve the training. The employment tribunal dismissed D's claim that the council had failed to allow D time off to attend the necessary training course in connection with his duties as a Health and Safety Representative. D appealed on the basis that the tribunal had failed to address the correct test as to whether the proposed training was "reasonable in all the circumstances" by virtue of reg.4(2) of the Safety Representatives and Safety Committees Regulations 1977 SI 1977/500.
HELD: (1) The duty on the employer under reg.4(2) of the regulations was to permit such time off with pay during the employee's working hours as was "necessary" for the purposes of undergoing training that was "reasonable" in all the circumstances. That raised two separate and distinct questions: (i) the "reasonableness" of the proposed training; and (ii) the "necessity" of taking paid time off work. The test of "necessity" focused upon whether paid time off work was necessary to attend a course and not whether the course itself was in some sense necessary. (2) The tribunal had erred in that it had applied the test of "necessity" to the question of whether the course was reasonable in all the circumstances. To that extent it had misdirected itself.

Appeal allowed. Matter remitted to the employment tribunal.

LTL 1/5/2003 : (2003) ICR 1405 : Times, May 16, 2003

Document No. AC0104977
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