EAT Time Off – HEALTH and SAFETY
The right to paid time off for safety representatives – remedy for denial of the right – Regulation 11(3) of the Safety Representatives and Safety Committees Regulations 1977
Having found that the Respondent had acted in breach of the Regulations by denying the Claimant (an appointed safety representative) paid time off work for a prescribed purpose, the ET made a declaration to that effect but concluded that no award of compensation should be made under Regulation 11(3) of the 1977 Regulations. Whilst allowing that an injury to feelings award was permissible under the Regulations, the ET did not find that the Claimant had established any such injury in fact in this case. Considering the possibility of an award for what was just and equitable having regard to the employer’s default and the loss sustained by the Claimant, more generally, the ET equally concluded that no award should be made.
The Claimant appealed, arguing that the ET had erred in its approach, alternatively had reached a perverse conclusion.
The Respondent resisted the appeal, relying on the ET’s reasoning but also seeking to argue for the first time that no award for injury to feelings was permissible under Regulation 11(3).
Held: dismissing the appeal
There were no exceptional reasons to permit the Respondent to take a point for the first time on appeal but, obiter, injury to feelings awards related to claims of discrimination (applying London Borough of Hackney v Adams [2003] IRLR 402 EAT and Santos Gomes v Higher Level Care Ltd UKEAT/0017/16/RN) and not to the non-discriminatory breach of a right for the purposes of Regulation 11(3).
The ET had approached its task correctly, whether viewed as considering compensation for injury to feelings or in respect of what was just and equitable more generally (following Skiggs v South West Trains Ltd [2005] IRLR 459 EAT). Its reasoning could not be read as limited to one paragraph; it had taken into account relevant factors and had reached a permissible conclusion on the material before it.
Eady QC HHJ
[2016] UKEAT 0125 – 16 – 1710
Bailii
Safety Representatives and Safety Committees Regulations 1977 11(3)
England and Wales
Employment, Health and Safety
Updated: 24 January 2022; Ref: scu.570399