R (London Fire and Emergency Planning Authority) v Secretary of State for Communities and Local Government
| Jurisdiction | England & Wales |
| Judgment Date | 18 May 2007 |
| Neutral Citation | [2007] EWHC 1176 (Admin) |
| Date | 18 May 2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3936/2006 |
[2007] EWHC 1176 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Honourable Mr Justice Stanley Burnton
Case No: CO/3936/2006
Michael Supperstone QC, James Cornwell (instructed by Davina Fiore, Head of Legal & Democratic Services ) for the Claimant
Robin Tam QC and Caroline Neenan (Instructed by the Treasury Solicitor) for the Defendant
Nicholas Toms (instructed by Thompsons Solicitors ) for the Interested Parties
Hearing dates: 19, 20 April 2007
Stanley Burnton J:
Introduction
In these proceedings, the Claimant, the London Fire and Emergency Planning Authority ("the Authority"), seeks judicial review of the decisions of the Defendant dated 24 February 2006 to allow the disciplinary appeals of the Interested Parties, Paul John Williams ("Mr Williams") and Andrew Michael Slater ("Mr Slater") against its disciplinary awards of dismissal. Mr Williams and Mr Slater were fire fighters employed by the Authority. Both were dismissed by the Authority following serious breaches of the Authority's rules on outside employment. The Secretary of State did not interfere with the findings that the Interested Parties had committed disciplinary offences, but he reduced the sanctions to a reduction in rank from Sub-Officer to Firefighter in the case of Mr Williams and to 3 months' stoppage of pay and a final warning in the case of Mr Slater.
The facts
(a) Background and employment terms
The Authority's responsibilities include, in addition to the fighting of fires and dealing with other emergencies, the discharge of extensive statutory powers and duties to enter into and to inspect business and other premises to ensure that they comply with fire safety legislation. The Authority also has statutory powers and duties to enforce fire safety legislation, if necessary through criminal prosecution.
Mr Williams and Mr Slater joined the then London Fire and Civil Defence Authority as Firefighters in 1986. Mr Williams was promoted to Sub-Officer in 2000. At the times of their offences Mr Williams was a fire safety inspecting officer with the Hillingdon Borough Fire Safety Team and Mr Slater was stationed at G40 Hayes Fire Station (Red Watch), having had experience in fire safety. Prior to the incidents that were the subject of the disciplinary proceedings both officers had clean disciplinary records.
As a fire safety inspecting officer Mr Williams' duties included carrying out inspections of premises under the Fire Precautions Act 1971 and the Fire Precautions (Workplace) Regulations 1997, identifying any contraventions of the legislation, serving enforcement notices, setting compliance deadlines, carrying out follow-up inspections, and considering and advising on whether enforcement proceedings should be pursued (including prosecutions in the Magistrates' Court).
Both Mr Williams and Mr Slater were appointed under appointment letters which stated:
Your appointment is subject to the provisions set out from time to time in the Staff Code, the Standing Orders and Regulations and Rules of the Authority in force from time to time, in the Scheme of Conditions of Service of the National Joint Council for Local Authorities' Fire Brigades, as applied to operational members of the Brigade…; and in any local agreements … as notified to you including Brigade Orders and Pay and Conditions Circulars and other Brigade instructions from time to time in force. Certain aspects of your employment, in particular the provisions relating to … discipline, are subject to regulations made by the Secretary of State for Home Affairs. The current provisions are contained in… the Fire Services (Discipline) Regulations 1985…
The letter particularly drew attention to several provisions, including under "Private work":
The Authority's requirements relating to private work are set out in the Scheme of Conditions of Service and NJC for Local Authorities' Fire Brigades (paragraph 8(1) of section IX) and the Pay and Conditions Circular on Outside Employment. Under these provisions, staff on the shift or day duty system are not permitted to undertake outside employment (including self employment) for hire or gain or carry on any trade or business without the express permission of the Chief Fire Officer.
The National Joint Council for Local Authorities' Fire Brigades Scheme of Conditions of Service provides at paragraph 8:
"Prohibition on outside employment
A whole time member of a brigade shall not hold any other office or employment for gain or reward or carry on any trade or business without the express permission of the fire authority which may be subject to any restrictions or conditions it thinks fit."
Secondary employment among the Authority's employees is governed by a Personnel Note entitled "Outside Employment" ("the Note"), which is a mandatory instruction. The "Key Point Summary" states:
Authority's requirements
The Authority requires that efficiency and performance of official duties shall not be impaired by outside employment. It must be able to rebut allegations that its integrity is being impaired or that the activities of its staff are prejudicial to the Brigade's reputation.
Staff must not therefore undertake activities which;
• may lead to suspicion of undue favour or improper influence being exercised through contracts, or any kind of consent, permission, license etc. which the public seek from the Authority or any activity which may bring the Authority into disrepute.
…
Undertaking outside employment without permission
Undertaking outside employment without permission or breaching the conditions will be regarded as a serious breach of discipline and any action under the discipline regulations could lead to dismissal for a first offence.
The Note also provides:
1.3 The Authority must also be in a position to rebut with confidence any allegation that the integrity of its administration is being impaired because of the leisure time activities of its employees or that such activities are prejudicial to the reputation of the Brigade. Members must not therefore undertake activities which might lead to suspicion of undue favour being granted or undue or improper influence being exercised in relation to contracts or any kind of consent, permission, license etc which members of the public seek from the Authority or any activity which may bring the Authority or Brigade into disrepute.
2.2 The undertaking of outside employment without permission will be regarded as a serious breach of discipline and render members liable to action under the Fire Services (Discipline) Regulations. Whilst each case will be considered on its facts, employees who fail to obtain permission and/or breach the conditions upon which permission is granted should be quite clear that, in doing so, they risk being dismissed from the Authority's employ for a first offence.
2.12 Outside employment on work which may be subject to the Authority's statutory supervision or consent is not permitted.
2.13 No member of the Brigade is to undertake paid or unpaid employment, or carry on any trade or business for any person, firm or company … who the member knows or believes is:
• applying [or applies on a periodic basis] to the Authority for a statutory consent, permission, discretionary licence or any other purpose [e.g. for a petroleum licence, grant of or exemption from fire certificate requirements];
2.16 Outside employment must not be undertaken for any person (other than an employee), firm or company with whom a member deals in the course of official duty.
(b) Mr Williams' and Mr Slater's breaches of their terms of employment
Mr Williams' and Mr Slater's disciplinary offences arose out of their activities on behalf of Safesmart Limited ("Safesmart"), a company carrying on business as a fire safety consultancy. It was incorporated on 8 February 2002. On 19 February 2002 Mr Williams and Mr Slater became shareholders in, and directors of, the company. It commenced trading on 1 April 2002. Mr Williams was described in its literature as its "Managing Director" and Mr Slater as its "Operations Director". There was a third director, M E Williams. Each of the directors had 25 of the 75 issued shares. Mr Williams signed off the directors' report and annual accounts for the accounting periods to 31 March 2003 and 31 March 2004. Safesmart's primary activity was the carrying out of fire safety inspections, but it also provided fire safety instruction and fire safety equipment to businesses. Its literature described it as "run by current Fire Officers".
On 13 February 2002, Mr Williams applied to his line manager Assistant Divisional Officer ("ADO") Eammon Brady for permission to undertake outside employment. For that purpose he submitted an application in the Authority's standard form. He stated that the type of work he sought permission for would be self-employed, and it was described as "Management Systems and Building Control Consultancy" (although it was understood by ADO Brady that this would be fire safety consultancy). Mr Williams did not give Safesmart's name on the form. Mr Williams signed the declaration that he would abide by the Note. ADO Brady recommended that permission be granted on the proviso that:
"… Agreement is given...
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