The Judgment can be found here.
The Claimants, represented by Jonathan Davies, were Static Protection Officers and Close Protection Officers whose duties involved protecting persons of rank and importance, and their families. Many of the officers are authorised to carry weapons and were required to retain them overnight whilst on protection duties.
Police Officers are neither employees, nor workers, and their right to pay derives directly from statute. They cannot bring claims for unlawful deduction of wages and so must, in disputes as to whether they have been paid correctly, bring a claim in debt in the civil courts.
Their claims were, in the Fielding case, for non-payment of overtime and in Prior (and in the alternative in Fielding) for non-payment of the so-called Winsor Allowances (Away from Home Overnight, Hardship and On Call Allowances).
The Metropolitan Police also ran a defence of set-off premised on a notional claim of unjust enrichment. They argued they had paid the officers additional monies under two non-statutory arrangements in place of their statutory entitlements and that such sums should be set-off it, were found that they had failed to make the payments the Claimants contended were due under statute. Rather surprisingly, by the time of trial, the Metropolitan Police’s position was not that such payments had been made ultra vires but that the Court should identify a novel ground of restitution. The Claimants relied on defences of estoppel and change of position.
Mr Justice Kerr found against the Claimants in the Fielding claim in their claim for overtime.
The Claimants argued that when they retained a firearm overnight, this meant the officer retaining remained on duty and was therefore entitled to overtime. However, the judge found that the structure of the 2003 Regulations, which creates an officer’s right to remuneration , the determinations made pursuant to them and their negotiating history did not support the idea of a binary distinction between being on duty or off duty. He found that the existence of the on-call allowance and the criteria for entitlement to it demonstrated the existence of a state in between the two extremes.
An officer must not necessarily be on “duty” in the fullest sense merely because he or she remains in a state of readiness to start a period of full “duty” after being stood down for the night. He described this state as an ‘in between’ state in which the officer meeting those criteria is neither fully on duty nor fully off duty referring to the fact that such arrangements are common not just in the police force.
He also found support for his conclusion in the reasoning of the Supreme Court in Royal Mencap Society v Tomlinson-Blake  ICR 758 because the proposition which formed part of the decision making in that case that a person is unlikely to be working while asleep is, he said, a general one.
Mr Justice Kerr also found against the Claimants in their claim for Away from Home Overnight Allowance.
According to the Determination defining the allowance, it is payable in respect of every night on which a police officer is ‘held in reserve’. A police officer is ‘held in reserve’, if he or she is ‘serving away from his normal place of duty’ and ‘is required to stay in a particular, specified place rather than being allowed to return home’. The police officer 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’.
In the middle of the claim period, the provision defining the allowance was amended by the introduction of an additional requirement that an officer seeking payment of the allowance be staying overnight away from home ‘by reason of the need to be ready for immediate deployment’ and to expand the concept of ‘routine enquiries’ so that, in effect, the meaning of the phrase could be determined by each officer’s chief officer.
Normal Place of Duty
The Claimant’s case was that a RASP officer’s normal place of duty is the base at which they are based when not deployed elsewhere. For Static Protection Officers, the palace or other location where they regularly work and for Close Protection Officers either London generally, or the location where they have their locker, keep their kit and attend for administrative purposes such as appraisals which was also the location shown on the various business cards the Commissioner had provided to the Claimants.
That interpretation of “normal place of duty”, the Claimants argued, is supported by the definition of “workplace”, “permanent workplace” and “temporary workplace” in section 339 of the Income Tax (Earnings and Pensions) Act 2003 and in employment income manuals produced by Her Majesty’s Revenue and Customs (HMRC). The “normal place of duty” could not be a temporary place where the officer goes to stay near their principal.
The Claimant’s case was that “enquiries” bore the meaning of the ordinary English word, i.e. enquiring into events. It did not include performance of specialist policing duties such as public order policing or protection duties. As such it could not be used to describe the officer’s duties and thereby exclude them from payment of the allowance.
The Judge’s reasoning
Mr Justice Kerr found that the Claimants were not ‘held in reserve’ by finding that the amendment from 1 March 2015 made it clear that ‘routine enquiries’ in effect meant ‘routine duties’ and that the Claimants’ ‘normal place of duty’, in the case of a RASP officer, was usually the place where they were on duty at any given time. If an officer travels from London to Cairo, his or her normal place of duty is, first, London for a time and then, Cairo for a time, until he or she moves on.
The judge went to find that, had he found in favour of the Claimants, he would have rejected the Metropolitan Police’s defence of set-off.
Whilst, in the light of Mencap, the decision on overtime is consistent with the approach of the Supreme Court in on-call situaitons, the decision relating to the Away from Home Allowance is a harsh one as far as RASP officers are concerned, somewhat perplexing and one that will no doubt be relied upon by other chief officers in other police functions to deny payment to officers who are required to spend time away from home in the course of their duties. The allowance, as its name suggests, was introduced to compensate officers when being required to work away from home in performing their duties. That is its purpose. Yet, the underlying theme of the decision is that because RASP officers travel as part of their duties, the allowance should be denied to them.
View Jonathan Davies Profile here.
A 42BR Employment Webinar, presented by Jason Braier and Jamie Fireman. Read more >
Paul Fuller, a member of our Business & Property Group, summarises and considers the case ClientEarth v Shell plc & Ors  Read more >