Employment

Duty on employer to allow health and safety representative time off for training - claims arising from alleged breach of such duty-Employment tribunals and Employment Appeal Tribunal retaining jurisdiction to hear such claims notwithstanding legislative change

Duthie v Bath and North East Somerset Council: EAT (Judge Ansell, Mr K Edmondson and Mr DJ Hodgkins): 29 April 2003

The applicant complained to an employment tribunal that his employer had failed to allow him time off work to attend the necessary training course in connection with his duties as a health and safety representative, but the claim was dismissed.

The applicant appealed on a ground relating to the tribunal's application of the test set out in regulation 4(2) of the Safety Representatives and Safety Committees Regulations 1977 (SI No 500 of 1977); but a preliminary issue also arose for the first time, concerning the jurisdiction of the employment tribunals and appeal tribunal to hear such cases.

Michael Ford (instructed by Naomi Cunningham, Free Representation Unit) for the applicant; Tess Gill (instructed by the Solicitor to the Council) for the employer.

Held, allowing the appeal, that in White v Pressed Steel Fisher [1980] IRLR 176, the appeal tribunal addressed a similar issue under the provisions then in force, there finding jurisdiction by construing the relevant provisions so as to include a reference to transitional provisions within section 128 of the Employment Protection (Consolidation) Act 1978; that the latter section had since been repealed, but that application of the same reasoning led the court to find a continuing jurisdiction in the tribunals on the basis that the reference in regulation 11(5) of the 1977 regulations to paragraph 16 of Schedule 1 to the Trade Union and Labour Relations Act 1974 was now to be construed as containing a reference to Schedule 2 to the Employment Tribunals Act 1996, the latter providing transitional provisions similar to those repealed; that the appeal tribunal further had jurisdiction to hear appeals in relation to matters listed at section 21 of the 1996 Act, which included proceedings before an employment tribunal 'under or by virtue of' such Act; and that the respective tribunals accordingly retained jurisdiction.