The overtime litigation: not yet into extra-time

We may be a little closer to some answers following the judgment of Kerr J in (1) Prior and others (2) Fielding and others v Commissioner of Police of the Metropolis [2021] EWHC 2672 (QB), which was handed down in October 2021, and the beginning of the trial of the claims by CHIS handlers and controllers in the Police Overtime Claims Litigation (“POCL”).

The claims by members of the Royalty and Specialist Protection command

In Prior, 397 current and former members of the Metropolitan Police Service’s Royalty and Specialist Protection command (“RASP”) brought claims for unpaid overtime and allowances. The claimants had valued their claims at more than £18,000,000.

Much of the evidence in the trial was heard in private and the public judgment is supplemented by a confidential annex. This reflected the specialist nature of the work undertaken by RASP: their duties involve protecting persons of rank and importance and their families.

As a consequence of their duties, many RASP officers operated very differently to ‘conventional’ police officers: some (but not all) would often work unconventional and unpredictable hours; some (but not all) worked for long periods outside of the Metropolitan police district; and they had a high degree of autonomy often working to the request of the protected person to whom they were assigned.

There were two principal issues before the Court. First, whether an officer who retains a firearm overnight is – by reason of the retention of that firearm and a requirement to be ready to return to duty – on duty and therefore entitled to overtime. Second, whether the claimants were ‘held in reserve’ for the purposes of Annex U of the Secretary of State’s Determinations and therefore entitled to the Away from Home Overnight Allowance (“AFH”).

The Away from Home Overnight Allowance

The AFH was introduced on 16^th April 2012 by Home Office Circular 010/2012: it had retrospective effect from 1^st April 2012. The Circular amended Annex U of the Secretary of State’s Determinations (which are themselves made pursuant to powers delegated by the Police Regulations 2003). The AFH – which has a value of £50 – is payable to constables, sergeants, inspectors and chief inspectors in respect of every night on which they are ‘held in reserve’.

Paragraph 11 of Annex U (as amended in March 2015) provides:

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.

Kerr J rejected the claimants’ argument that when they were unable to return home at the end of their day’s duties, they were entitled to be paid the AFH. He held that the Home Secretary’s March 2015 amendment to clarify the meaning of ‘held in reserve’ did not substantially alter the meaning of Annex U. Moreover, Annex U must be construed in such a way as it applies to all officers (and not just those within RASP).

A requirement to “stay in a particular, specified place” does not mean that an officer is required to stay at a particular pinpointed location such as a school gym or barracks (which might be thought of as the archetypical example of those situations which were originally catered for by the old Hertfordshire agreement which provided for payment where officers were deployed away from home on mutual aid). Hence, an officer could choose to stay overnight at a variety of locations. The place may be sufficiently particularised and ‘specified’ by a requirement of proximity to the next day’s duty.

Importantly, the Judge held that the phrase ‘routine enquiries’ includes “plenty of police duties that are not really enquiries at all”. It should not be given a restrictive and artificially narrow construction limited only to a sub-set of criminal justice functions performed by detectives or investigators.

Further, the Judge concluded that officers can have more than one place of duty which changes rapidly and frequently as they move around with their principals or in advance of them. This reflects the ‘specialist peripatetic’ nature of the work undertaken by many RASP officers.

As a result of those findings, none of the RASP claimants were entitled to the AFH.

Overtime

The claim for overtime was likewise rejected.

Kerr J accepted the MPS’ submissions that there was not a binary distinction between being on or off duty: this is illustrated by the existence of the on-call allowance which occupies a space between those two extremes. In these cases, the parties had agreed that where the claimants met certain criteria, they would be entitled to the on-call allowance (which is payable under paragraph 13 of Annex U).

Following the cases of Crosby v Sandford (1979) 78 LGR 85 (which concerned the entitlement of a police dog handler to claim an overtime allowance in respect of the time spent each day outside rostered hours of duty feeding, grooming, exercising and generally caring for his dog) and Allard v Chief Constable of Devon and Cornwall Constabulary [2015] ICR 875 (which concerned CHIS handlers), it is not necessary for an officer to receive an express instruction to perform a task for that task to amount to duty: a standing instruction will do. In Allard the Court identified a suite of activities which, if performed by a CHIS handler whilst off-duty, would result in that officer being recalled to duty (and therefore being entitled to the payment of overtime).

However, the Judge rejected the argument that retention of a firearm overnight and a requirement to be ready to return to duty, were themselves capable of amounting to duty in respect of which the claimants were entitled to be paid overtime.

The Supreme Court judgment in Royal Mencap Society v Tomlinson-Blake [2021] ICR 758 was of considerable assistance. In that case appeals were brought by two care workers who were “sleep-in” workers. Mrs Tomlinson-Blake was a highly qualified care support worker who provided care to two vulnerable adults at their own home. When she worked at night, she was permitted to sleep but had to remain at her place of work. She had no duties to perform except to “keep a listening ear out” while asleep and to attend to emergencies, which were infrequent. For each night shift, she was paid an allowance plus one hour’s pay at the National Minimum Wage (“NMW”) rate. She brought proceedings to recover arrears of wages on the basis that she was entitled to be paid the NMW for each hour of her sleep-in shift. Her work was time work.

Mr Shannon was an on-call night care assistant at a residential care home. He was provided with free accommodation at the care home and paid a fixed amount per week. He was required to be present in the accommodation from 10pm to 7am. He was permitted to sleep during that period, but had to assist if the night care worker on duty required his assistance during those hours. In practice he was rarely called upon. He brought proceedings among other reasons to recover arrears of salary on the basis that he was entitled to be paid the NMW for each hour that he was required to be on-call. Mr Shannon’s work was salaried hours work. The Employment Tribunal and the Employment Appeal Tribunal dismissed Mr Shannon’s claim.

The issue for the Court was how the hours of the sleep-in shifts should be calculated for the purposes of the NMW.

The important points that emerge from the judgment of Lady Arden (with whom the other Justices agreed) were:

1. It would not be a natural use of language to describe a person as working when they are positively expected to be asleep.
2. The issue being one of statutory construction, it should not be approached with any preconception as to what should entitle a worker to a wage.  Accordingly, it was “clearly not the position” that simply because at a particular time an employee is subject to the employer’s instructions, he is entitled to a wage:

“There are many situations when a worker has to act for the benefit of his employer which do not count for time work purposes, for example when he travels between home and work. Nor does the legislation proceed on the basis that the worker must be paid a living wage.”

1. In the case of an employer who expects an employee to be asleep for a period of the day/night, but who requires the employee to respond to emergencies, a distinction falls to be drawn between (i) the hours during which the employee is asleep (or expected to be asleep), albeit they must be in a position to respond to an emergency, and (ii) any occasion in such a period when, in fact, they are called upon to answer an emergency. Hours that fall within the former class of case are not time work, unless the worker actually answers an emergency call – in which event the time he spends answering the call is included.
2. The Court explained, within the context of the NMW Regulations, the difference between working and being available for work (see, for example, [57]).

As a result, in Prior Kerr J rejected the claim for overtime payments. The reasoning is likely to be of assistance in claims by other officers – such as undercover officers – who may argue that they are on duty 24 hours a day whilst ‘on the plot’, even if they are asleep or otherwise engaged in personal activities.

The Claimants have sought permission to appeal to the Court of Appeal.

The Police Overtime Claims Litigation

The long-awaited trial in POCL commenced at the end of January 2022. The issues before the Court in POCL are more broad ranging than they were in Prior. They include:

1. How the four-hour deeming provision in Annexes G and H should be applied where an officer is recalled to duty between two tours of duty and / or performs duty on a rest day, public holiday or free day.
2. Whether the claimants are entitled to recover damages for accrued but untaken additional leave.
3. Whether the claimants, as CHIS handlers and controllers, were entitled to the on-call allowance.

The hearing was adjourned part-heard with the balance of the evidence and closing submissions listed for July 2022. As a result, we will have longer to wait until the Court delivers its judgment on these claims by CHIS handlers and controllers.

It follows that whilst we may not yet be into extra-time, we might be approaching the end of the first-half.

Jonathan Dixey, led by Jason Beer QC, acted for the MPS in the Prior claims and for the Defendants in POCL

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Authors

Jonathan Dixey

Call 2007

Related areas

Police Law

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