Members: Mrs J Ward Mr D Frew Mr R Nelson v Represented by: Mr P Deans - Solicitor The State Hospitals Board For Scotland — 2019

The claimant was a rehabilitation instructor at the State Hospital, a trade union representative for SPOA and a local councillor. The respondent was a Special Health Board running a high security hospital, and the tribunal accepted that safe staffing and patient care were central operational constraints. The hospital had no overtime budget to cover the claimant’s absences, so cover had to be arranged by redeployment from other parts of the Skye Centre.

The tribunal found that the respondent did not operate a blanket refusal policy. It accepted evidence that each request for time off was considered in light of the time already granted, the clinical and operational impact on the Health Centre and Skye Centre, and the need for safety and security. For the trade union complaints, the tribunal held that the refusals relating to 10 September 2018 and 27 September 2018 were within the band of reasonable responses and were consistent with the statutory test requiring time off to be reasonable in all the circumstances. It also found that the respondent’s suggestion that the claimant could use some of his allotted special leave flexibly, and if necessary take additional time as unpaid leave, was reasonable.

On the section 50 ERA point, the tribunal stated that the claimant’s request for public duties time on 27 September 2018 was ultimately allowed and that he then took that day as paid special leave. It therefore found no breach of section 50 and dismissed that claim as well. The tribunal noted that the internal grievance was later upheld and that the respondent thereafter provided five paid special leave days per annum for the claimant’s public and trade union duties, but no monetary award was made in the judgment.