Richard Prior and 128 Others v The Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 08 October 2021 |
| Neutral Citation | [2021] EWHC 2672 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case Nos: QB-2019-001742 |
[2021] EWHC 2672 (QB)
Mr Justice Kerr
Case Nos: QB-2019-001742
QB-2019-001743
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Elliot Gold and Mr Jonathan Davies (instructed by Simons Muirhead Burton LLP) for the Claimants
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
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date and time for hand-down is 10:00am on Friday, 8 October 2021.
Introduction
These are claims by police officers against the defendant ( the Commissioner) for unpaid remuneration they allege is due to them. There are two actions, each with multiple claimants. In all, there are 397 claimants. They are police officers “employed” by the Commissioner.
I will at times in this judgment use the language of employment although their relationship with the Commissioner is in some respects different from that of conventional employees. They serve on terms with statutory underpinning and they hold the office of police constable at common law.
The claimant officers perform certain special duties known as Royal and Specialist Protection ( RASP) duties. As the acronym RASP suggests, their special duties involve protecting persons of rank and importance, and their families; individuals who could be vulnerable to unwelcome attentions from persons with malign intent.
The sums said to be owing to them relate to performance of certain RASP duties for which, they say, they have not been fully remunerated as required under their terms and conditions of service. Much debate at trial centred on whether they are entitled to be paid in respect of periods when they are not in full operational mode, yet not completely free from work related obligations.
Broadly, there is a distinction between being on duty and being off duty. If an officer is on duty, they receive pay for working; if off duty, they receive either nothing or, if anything, some form of compensation for restrictions on their time and activities, for example being away from home or being “on call”.
The claimants are trained and qualified in the use of weapons, including firearms. I heard evidence about the impact of that on rights to remuneration. I also had to look at the work patterns of the claimants and the habits, movements, locations and residences of some of their “principals”, i.e. those they protect.
The court sat in private to hear most of the evidence on those matters, for obvious reasons I gave in a brief extempore judgment at the pre-trial review. The content of that evidence could assist persons wishing harm to this country. Consequently, there is a confidential annex to this judgment, to remain unpublished, in which I address those parts of the evidence.
In this publicly available judgment, I will cover the parts of the evidence suitable for publication and the corresponding publishable parts of my reasoning and conclusions, as well as the submissions of the parties informing them. The material not suitable for publication are dealt with in the confidential annex, as indicated by a cross-reference in the form “ [CA (1)]”, “ [CA (2)]”, and so forth.
The Claims
For convenience and brevity (and with no disrespect for rank or discourtesy intended), I will tend to refer to officers as “Mr” or “Ms” rather than by rank, except where their rank is directly relevant to the issue under discussion.
In the first action (the Prior claims), there are seven lead claimants: Steven Roberts, Andrew Sowerby, Samantha Self, Craig Bloomfield, Andrew Stapleton, Simon Hammett and David Exell. Five are what are called static protection officers. One (Mr Stapleton) is a close protection officer. One (Mr Exell) is an “Aztec” officer. These terms are explained further below.
These claimants claim the “Away from Home” allowance ( the AFH allowance) on numerous occasions in respect of the period from 18 July 2012 to 30 November 2020. On some of those occasions they claim, in addition, a “hardship allowance” payable where, if AFH allowance is payable, they do not have sole use of a bathroom at their accommodation ( the hardship allowance).
These and some other allowances are sometimes called, collectively, “Winsor” allowances, after Sir Thomas Winsor who produced two reports in 2011 and 2012 (further mentioned below) from which have emerged the allowances that, informally, bear his name.
In the second action (the Fielding claims), there are five lead claimants: Justin Fielding, John Ball, Andrew Thorogood, Emma Atkins and Glenn Spencer. All five are close protection officers. All have at times performed the more specific role of personal protection officer, a role sometimes performed by close protection officers.
In the Fielding claims, the claimants claim overtime payments on numerous occasions in respect of the period from 18 July 2012 (or 6 May 2016 in some cases) to 7 June 2021. These claims are made on the basis that the relevant claimants were on duty at the relevant times.
In the alternative, the Fielding claimants claim two of the Winsor allowances, i.e. the AFH allowance and (sometimes) the hardship allowance. The periods of these alternative claims have the same start dates, 18 July 2012 (6 May 2016 in some cases), but a different end date, 30 November 2020 as in the case of the Prior claims.
The reason why the claim for Winsor allowances in both actions ends on 30 November 2020 is that from 1 December 2020, a new “protection allowance”, with which I am not directly concerned in this judgment, came into effect.
The Commissioner denies that the Fielding claimants are entitled to any overtime payments. They were not, she contends, on duty at the relevant times. In both the Prior and Fielding claims, the Commissioner submits that the claimants were properly paid for the hours they worked and were not eligible for the AFH or hardship allowances.
The Commissioner further submits in both actions that certain of the claimants were properly remunerated for the occasions that they worked away from home overnight, via a system of payments reflecting a notional minimum 16 hour working day, irrespective of the number of hours actually worked; whereas a normal working day would last less than 16 hours ( the 16 hour day).
The Commissioner submits, further, that certain of the claimants in both actions were also paid, and accepted, a “special escort allowance” ( the SEA); and that this comprised a monthly payment intended to compensate officers for long hours worked and time spent away from their homes.
In both actions, the Commissioner accepts that the claimants are entitled to payment of an “on call” allowance ( the on call allowance) on any occasion when they met the criteria for that allowance. In respect of many occasions on which the claimants claim overtime or Winsor allowances, the Commissioner's case is that they are entitled to the (lower) on call allowance.
The Commissioner also pursues a defence of set-off founded on a notional restitution claim against the claimants, to the extent that any of the claims succeed. She says the claimants, or some of them, would be unjustly enriched if permitted to retain sums paid by the Commissioner in addition to receiving as a debt (or damages) sums claimed in these actions in respect of the same periods.
That defence of set-off is opposed. The claimants would not, they say, be unjustly enriched if permitted to recover and keep the sums claimed in these actions. They would not thereby be remunerated twice over for the same work or in respect of the same period. They rely on estoppel by representation and on a defence of change of position. If necessary, they invoke article 1 of the first protocol to the European Convention on Human Rights ( ECHR).
The issues I have to decide are, therefore, whether the claimants are entitled under their terms and conditions of service to the payments they claim in respect of overtime and Winsor allowances for the relevant claim periods; and, if so, whether their entitlement is defeated by the defence of set-off arising from payment of the SEA and the 16 hour day.
The claimants have, in their opening skeleton argument, distilled the first of those two issues — entitlement to the elements of remuneration claimed – as boiling down to (i) whether an officer retaining a firearm overnight means the officer remains on duty and therefore entitled to overtime; and (ii) the meaning of the provision conferring entitlement to the AFH allowance and, in particular, the phrase “held in reserve” in that provision.
The Facts
I include in my outline of the facts some developments in the law, forming an important part of the factual context. To preserve a sense of proportionality, I will confine my account to the generic facts in broad overview and do not include an account of the work done by the individual claimants during particular shifts.
The office of constable, now called police officer, is a historic blend of common law and statute. The claimants' account starts with the Statute of Winchester 1285, enacted with the purpose “to abate the power of felons”. The office developed over the centuries and has always been distinct from the master and servant relationship now...
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