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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Prior & Ors v The Commissioner of Police of the Metropolis [2021] EWHC 2672 (QB) (08 October 2021) URL: http://www.bailii.org/ew/cases/EWHC/QB/2021/2672.html Cite as: [2022] ICR 398, [2021] WLR(D) 533, [2021] EWHC 2672 (QB) |
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QB-2019-001742 QB-2019-001743 |
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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RICHARD PRIOR AND 128 OTHERS |
Claimants |
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- and - |
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THE COMMISSIONER OF POLICE OF THE METROPOLIS |
Defendant |
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And Between : |
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JUSTIN FIELDING AND 267 OTHERS |
Claimants |
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- and - |
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THE COMMISSIONER OF POLICE OF THE METROPOLIS |
Defendant |
____________________
Mr Jason Beer QC and Mr Jonathan Dixey (instructed by Weightmans LLP) for the Defendant
Hearing dates: 5-8, 12-16, 19 and 23 July 2021
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Crown Copyright ©
Mr Justice Kerr :
Introduction
The Claims
The Facts
"Recommendation 6 Determination Annex G, made under Regulation 25 of the Police Regulations 2003, should be amended to replace time and a third premium pay for casual overtime with plain time. The minimum hours for being recalled between duty should be abolished and instead paid at plain time for the hours worked, with travelling time.
Recommendation 7 Determination Annex H, made under Regulation 26 of the Police Regulations 2003, should be amended to remove double time premium pay and the notice period of five days for working on a rostered rest day. Time and a half premium pay should be payable for working on a rostered rest day with fewer than 15 days' notice.
Recommendation 8 Determination Annex H, made under Regulation 26 of the Police Regulations 2003, should be amended to allow the payment of overtime at double time for 25 December and seven other days chosen for the next financial year by the officer before 31 January. Cancellation with fewer than 15 days' notice should require the authority of an Assistant Chief Constable."
Recommendation 11 Police officers on mutual aid service should be paid for the hours they are required to work each day, plus travelling time to and from the place of duty. Where those hours coincide with the unsocial hours period, or the duty has been required at short notice and they are eligible for the new overtime rates, the officer should be paid at the applicable premium rates.
Recommendation 12 The definition of 'proper accommodation' should be revised to describe a single occupancy room with use of en suite bathroom facilities. Where such accommodation is not provided, the officer should receive a payment of £30 per night. The current definition of 'higher standard accommodation' should be removed and not replaced.
Recommendation 13 Officers held in reserve on a day and who have not been paid for any mutual aid tour of duty that day, should receive the on-call allowance of £15 for that day."
"Recommendation 6 Casual overtime
MODIFIED. The premium rate of time and one third to be retained for casual overtime, with payment of travelling time for recalls between tours of duty. The minimum hours payment for being recalled to be abolished as proposed.
Recommendation 11 Mutual Aid
MODIFIED. Both sentences of Recommendation 11 are accepted as worded. In addition, officers on mutual aid who are unable to return home are to receive a new 'Away from Home Overnight Allowance' of £50 per night.
Recommendation 13 Held in reserve
MODIFIED. Officers held in reserve who are unable to return home are to receive the new 'Away from Home Overnight Allowance' of £50 per night."
"Recommendations 11 and 13 Mutual Aid and Held in reserve
64. .. The Tribunal's understanding of the Winsor Report Part 1 proposal is that if officers are held in reserve and are unable to return home they would receive essentially the same reward as if they were fulfilling their duties at their normal place of work plus traveling time and a payment of £15, equivalent to the proposed on-call payment. [The issue of on-call is dealt with separately in paragraph 74 below.] The Tribunal accepts the Winsor Report Part 1's proposal that officers on mutual aid or held in reserve should be paid for the actual hours worked, but it also recognises that disruption is caused to officers' lives, especially their family lives, and the fact that officers are/can be directed to be on mutual aid or held in reserve. The compensation measures proposed in the Winsor Report Part 1 are a major change from the existing arrangements. In the Tribunal's view, there should be an element of additional compensation for officers who are held in reserve and unable to return home (whether this is in their own force or on mutual aid operations). Therefore, the Tribunal has calculated, by approximate reference to the hourly rate for constables (at the 8th point on their scale), that an amount of £50 should be paid as an 'Away From Home Overnight Allowance'. The existing 16-hour payment would cease. However, the new allowance will be some recompense particularly for officers who are held in reserve for protracted periods. "
"Recommendation 103 The Police Regulations 2003 should be amended to provide the Commissioner of the Metropolitan Police with the authority to determine an appropriate level of buy-out of the casual overtime of specialist protection officers.
Recommendation 104 The Commissioner of the Metropolitan Police should determine an appropriate buy-out of the casual overtime of specialist protection officers which results in a greater harmonisation of the pay of specialist and royalty protection officers, and which takes appropriate account of the unique requirements of specialist protection officers."
"Recommendation 112 A national on-call allowance for the Federated ranks should be introduced from April 2013. The amount of the allowance should be £15 for each daily occasion of on-call after the officer in question has undertaken 12 on-call sessions in the year beginning on 1 April.
Recommendation 113 The national on-call allowance should be reviewed by the new police pay review body in its first triennial review when better management data are available.
Recommendation 114 Forces should compile clear management data on the voluntary deployment of officers on-call."
"An officer who is on-call is essentially off duty and free to undertake the majority of his personal pursuits. For this reason, on-call does not qualify for overtime, for which the officer becomes eligible once the recall to duty has taken place. I reiterate, however, that in readiness for duty, it is necessary that the officer is:
- contactable by telephone or pager;
- available to return to duty within a reasonable period of time;
- able to obtain access to appropriate transport; and
- fit for duty [footnote: includes not having consumed alcohol]."
"11) AWAY FROM HOME OVERNIGHT ALLOWANCE
a) A member of a police force in the rank of constable, sergeant, inspector or chief inspector shall be paid an allowance of £50, to be known as the away from home overnight allowance, in respect of every night on which the member is held in reserve.
b) Subject to sub-paragraph (c), a member is held in reserve for the purposes of this paragraph if the member is serving away from his normal place of duty (whether because the member has been provided for the assistance of another police force under section 24 of the Police Act 1996 or otherwise) and is required to stay in a particular, specified place rather than being allowed to return home.
c) A member is not held in reserve if the member is serving away from his normal place of duty only by reason of being on a training course or carrying out routine enquiries.
12) HARDSHIP ALLOWANCE
a) A member of a police force shall be paid an allowance of £30, to be known as the hardship allowance, in the circumstances set out in sub-paragraph (b).
b) The allowance shall be paid in respect of every night when the member:
i) is held in reserve, within the meaning of paragraph (11), and
ii) is not provided with proper accommodation.
c) For the purposes of sub-paragraph (b)(ii) 'proper accommodation' means a room for the sole occupation of the member, with an en suite bathroom."
"Away from Home Allowance:
Some officers outside the MPS are receiving it
Within the MPS, SO are holding claims back whilst awaiting clarification over claims
NC explained that there are 2 main issues from the federation perspective ('Routine Enquiries' and 'Training'). Having spoken to Ian Rennie's office (National Federation) a meeting had been arranged between the Home Office and the Federation in August to discuss these. The Home Office position is that the determinations are 'clear enough'.
Special Escort Allowance:
Some claimants of the above 'Away from Home' allowance are already in receipt of SEA - which would seem illogical and 'paying twice for the same thing'."
" Officers for whom it is a regular, foreseeable part of their duty to be away from home overnight will be excluded from claiming; examples are protection officers, undercover, surveillance, witness protection and those posted overseas (this list is not exhaustive). In most of these cases, the normal place of duty is away from home.
The existing framework of allowances and payments in respect of Royalty Protection recognise to some extent the long hours and away from home nature of the role. So 'Away from Home' cannot apply to any officer in receipt of Special Escort Allowance.
Protection officers' 'normal place of duty' is with the principal (and this argument has been used in relation to favourable tax treatment by HMRC). In addition, after 28 days a temporary place becomes a normal place and this may apply in some Royalty deployments."
"13) On Call Allowance
(1) A member of the rank of Constable, Sergeant, Inspector or Chief Inspector shall receive an allowance of £15 in respect of each day on which he spends any time on-call.
(2) In paragraph (1) 'day' means a period of 24 hours commencing at such time or times as the chief officer shall fix after consultation with the joint branch board, and the chief officer may fix different times in relation to different groups of members."
"11) AWAY FROM HOME OVERNIGHT ALLOWANCE
a) A member of a police force in the rank of constable, sergeant, inspector or chief inspector shall be paid an allowance of £50, to be known as the away from home overnight allowance, in respect of every night on which the member is held in reserve.
b) Subject to sub-paragraph (c), a member is 'held in reserve' for the purposes of this paragraph if the member is serving away from his normal place of duty (whether because the member has been provided for the assistance of another police force under section 24 of the Police Act 1996 or otherwise) and is required to stay in a particular, specified place overnight rather than being allowed to return home by reason of the need to be ready for immediate deployment.
c) A member is not 'held in reserve' if the member is serving away from his normal place of duty only by reason of being on a training course or carrying out routine enquiries. For the purposes of this paragraph 'routine enquiries' means activity which forms part of the member's role or normal duties where due to the nature of that role or duty, or due to the distance from the home station, the member is unable to return home. It is for the chief officer to determine a member's role or normal duties, including whether there is an expectation within that role or those duties that the member is to travel or to work away from home."
"in line with current operating protocols at SO1, where protection officers who are assigned to a Principal are required to be continuously available to undertake an activity directly related to that protection deployment, and the criteria detailed below are met, then the basis for their remuneration will be payment between commencement of protection duties and [CA (7)], or the end of protection duties, whichever ls later.".
Submissions, Reasoning and Conclusions
Overtime; retention of firearm overnight
Claimants' submissions
Commissioner's submissions
(1) Police officers are exempt from the prohibition against possession of firearms because they are servants of the Crown, whether on or off duty (Firearms Act 1968, sections 7 and 54). [CA (12)]
(5) The claim to overtime payments is inconsistent with regulation 25(2) of the 2003 Regulations. While regulation 25(1)(b) permits payment of overtime (if the Secretary of State so determines) where an officer "is recalled between two tours of duty", by regulation 25(2) "recall" to duty "does not include a warning to be in readiness for duty if required ".
(6) The claim is inconsistent with the approach of the Court of Appeal in Crosby v. Sandford (1979) 78 LGR 85, where a police dog handler was found to be recalled to duty between two tours of duty only for the one hour per day required to care for the dog at home; and Allard v Chief Constable of Devon & Cornwall Constabulary [2015] ICR 875, where receipt of a call from an intelligence source while off duty amounted to a recall to duty for the duration of the work done in receiving and processing the information.
(7) The claim is inconsistent with the Supreme Court's approach in Royal Mencap Society v Tomlinson-Blake [2021] ICR 758: it is an unnatural use of language to say that someone is working while they are expected to be asleep. Being required to wake up and work if called on, to respond to an emergency, was not the same as working while asleep. Only the time spent actually responding to an emergency, including taking the call, counted as work. The time asleep was being available to work, not actually working.
(8) The situation of a CPO or PPO who is stood down for the night fits with the criteria for entitlement to the on call allowance which, the Fielding claimants agree, is payable provided the officer satisfies those criteria that night. Some have claimed and received the allowance for some nights, in effect seeking payment twice over and inconsistently with having been on full duty those same nights.
Reasoning and Conclusions
Away From Home (AFH) allowance; "held in reserve"
Claimants' submissions
Commissioner's submissions
Reasoning and Conclusions
The defence of set-off; unjust enrichment
Commissioner's submissions
"Those payments were made by the Commissioner in conjunction with other payments in the belief that this was in consideration for the work, and the circumstances of that work, undertaken by the Claimants. In those circumstances, the amounts paid should be set off in order to avoid the Claimants' being paid twice for the same work undertaken.
If, contrary to the Commissioner's case, the Claimants are entitled to overtime pay and / or allowances, the sums previously paid were paid on a mistaken basis and the Claimants should not be permitted to recover twice for the same work. The basis on which the Commissioner intended to benefit the Claimants or some of them should be treated as vitiated. Money paid under a mistaken belief of the payer as to the existence of a liability to pay is recoverable (e.g. National Westminster Bank Ltd v Barclays Bank International Ltd [1975] QB 654).
It would be unjust for the Claimants to retain payments made whilst also recovering sums for any unpaid overtime and / or allowances. As such, any sums to which the Court finds the Claimants are entitled should be set off against those already paid."
"the Commissioner's mistake was that she [believed that she] was not lawfully able to pay AFH allowance to these officers and [that] therefore the disruption and inconvenience to their private and family lives that was necessarily involved in working away from home fell to be compensated by other means namely the payment of a notional period of 16 hours pay, or the payment of the SEA. "
Claimants' submissions
Reasoning and Conclusions
Disposal
Note 1 Although I was provided with a perplexing 30,000 plus pages of documents, not in chronological order, I could not find this circular anywhere in the bundles but was able to find it online. [Back]