Duthie v Bath & North East Somerset Council

J U D G M E N T

1. LORD JUSTICE THOMAS: This is an appeal by the appellant, Mr Duthie, who has appeared in person before me. I would like first to pay tribute to two things. First, the way in which he has marshalled his arguments, not only in a written submission that was put before the court, but today he has taken me through a very cogent submission where he has marshalled the arguments and set out everything that can be said on his behalf with great clarity and has conducted this hearing in a commendable manner.

2. The appellant seeks permission to appeal against the decision of the Employment Appeal Tribunal (Burton J, Mr Crosby and Mr Lambert) given on 8th March 2004, holding that a decision of an Employment Appeal Tribunal at Bristol contains no arguable error of law.

3. The background to the application is that the appellant -- who I have no doubt is a very conscientious employee of the respondent authority -- brought a claim alleging that his employers had failed to permit him to take time off in accordance with regulation 2(4) of the Safety Representatives and Safety Committees Regulations 1977, which had been made under section 2(4) of the Health and Safety at Work Act 1974. The Act provides, under section 2 which sets out the general duties of employers to their employees, that:

"Regulations made by the Secretary of State may provide for the appointment in prescribed cases by recognised trade unions (within the meaning of the regulations) of safety representatives from amongst the employees, and those representatives shall represent the employees in consultations with the employers under subsection (6) below and shall have such other functions as may be prescribed."

4. Before referring to the regulations, it is convenient to refer to section 2(6) which provides:

"It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to co-operate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures."

5. The relevant paragraph of the regulations to which it is necessary to refer is regulation 4(2). It provides:

"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 a 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."

6. The application made by the appellant came before a Tribunal which found against the appellant. That decision was reversed by the Employment Appeal Tribunal on the basis that the Tribunal had not applied the correct test under regulation 4(2). They concluded that the proper test in essence was that they should first consider whether it was reasonable in all the circumstances for there to be further training and, secondly, if it was, then the appellant would have been entitled to time off necessary for that course.

7. The matter was referred back to a differently constituted Tribunal to determine, in accordance with the decision of the Employment Appeal Tribunal, the matter on the facts. It came before the Tribunal on 6th and 7th October 2003 at Bristol. On the facts they decided against the appellant.

8. The appellant then brought an appeal against that decision to the Employment Appeal Tribunal. There were two bases of that appeal. At a preliminary hearing the Tribunal decided that there were no arguable points of law which entitled the Employment Appeal Tribunal to interfere with decision of the Employment Tribunal. It is against that ruling which the appellant appeals.

9. The first point that arises is the relationship between section 2(4) (and the regulations made thereunder) and section 2(6) of the Act. At the Employment Appeal Tribunal the issue was raised as to whether, as this point had not been taken on the first hearing before the Employment Appeal Tribunal, it might not be open to the appellant to take the point on the basis of res judicata or issue estoppel. The Tribunal took the view that although there may be force in that argument, it was not a basis on which they should decide against him.

10. In written submissions put before me, the appellant has dealt with that issue by referring to a number of cases. But I have made clear to him that in the light of the way in which this matter was considered by the Employment Appeal Tribunal, I need not trouble him on that issue because I would not hold against him any issue in relation to issue estoppel or res judicata , as the Tribunal had not decided the case against him on that basis.

11. The basis upon which the Tribunal decided the matter related to the interrelationship between section 2(6) and section 2(4) and the regulations made thereunder. It seems to me that the Employment Appeal Tribunal were right in saying that there was no arguable point that was raised in relation to subsection (6). It is clear, in my judgment, from looking at subsection (6) of the Act and taking into account (as I shall mention in a moment) the Code and Council Directive 89/391/EEC Article 12, that there should be consultation, as the appellant has argued before me. But it seems to me that the real issue is not one that turns upon the interrelationship of subsections (6) and (4), but whether on the facts of this case, it can be said that the Tribunal failed to apply the law properly, or in other words made a decision that was on the facts one that can be described as perverse. I therefore turn to consider what this application really is about, in my view, and that is whether the Tribunal approached the matter correctly and whether really what is said here is that they made a decision which the appellant feels was mistaken on the facts.

12. In my judgment the Employment Appeal Tribunal were correct in the conclusion of law which they reached, that this was not a case in which it could be said that either the Tribunal had failed to approach the matter correctly in accordance with the provisions of the Code (to which obviously great importance has to be attached), with the provisions of the Act and with the provisions of the regulation and with the provision of the Council's directive. It seems to me quite clear from their decision that they did.

13. Can it be said, therefore, that on the facts this was a case where the decision was perverse? The appellant has set out, if I may say so, with great cogency the argument that he makes. It may be that had the Tribunal that heard this matter been differently constituted or taken a different view of the facts, the decision might very well have been different. But in my view what this appeal is essentially about does not revolve on a question of law but on a question of fact. I cannot see that it can be said that the Tribunal approached the matter wrongly or came to a perverse conclusion. They may have come to a conclusion which I may not agree with, but that is not the right question. It seems to me therefore -- and I say this with great respect to the appellant -- he has put forward arguments that are cogent and that support (as the Tribunal stated) the altruism with which he has conducted this appeal, but, in my view, looked at quite simply, this is essentially an appeal on a question of fact. I can discern no issue of law upon which it can be said that either the Tribunal or the Employment Appeal Tribunal were mistaken.

14. In those circumstances, therefore, although I have a lot of sympathy with the position Mr Duthie has taken, I regret to tell him that I regret to decide that I cannot allow permission to appeal.

ORDER: Application for permission to appeal refused.

(Order not part of approved judgment)