On duty or on call?

A much-anticipated High Court judgment has delivered a significant ruling on a case involving £24 million worth of claims for unpaid overtime and allowances, made by officers against the Metropolitan Police Service (MPS).

The outcome has significant implications for all police forces, as it reinforces the power that commissioners and chief officers have to define the type of work that officers do, which in turn impacts upon the eligibility of officers for certain allowances (ie, the ‘Away from Home’ and ‘Hardship’ allowances).

The decision also provides important clarification regarding the duty status of firearms officers and what pay they are entitled to.

What was the background to the ruling and what did the judge decide?

Background

In the case of Prior and 128 others & Fielding & 267 others v The Commissioner of Police of the Metropolis [2021] EWHC 2672 (QB), a total of 397 officers from the Royalty and Specialist Protection (RaSP) Command of the MPS brought claims against the force for unpaid overtime and allowances totalling around £24 million.

As the acronym RaSP suggests, the special duties of the officers involve protecting persons of rank and importance and their families.

The officers have specialist training, including in the use of firearms and responsibilities, that are unique in policing, and frequently travel following the ‘principals’ who they protect.

The claims they brought were split into two sets of proceedings.

The officers in the ‘Prior’ proceedings were mainly ‘static protection officers’, responsible for guarding and monitoring a fixed location. They claimed a debt for unpaid allowances on numerous occasions dating back to July 2012.

They claimed the ‘Away from Home’ allowance, contained in Annex U of the Police Regulations 2003 (£50 a night); the linked ‘Hardship’ allowance (£30 a night if away from home and having to share a room or a bathroom); and the ‘on-call’ allowance (£15 a night paid if designated to be on call overnight).

Collectively, these allowances are known as the ‘Winsor allowances’.

The officers in the ‘Fielding’ proceedings were all ‘close protection officers’, who are assigned to closely guard and protect a particular principal. They claimed additional overtime payments for numerous occasions when working away from home overnight.

They argued that, despite being recorded as being off duty, their additional responsibilities, including when required to retain firearms overnight, meant that they were in fact on duty (and therefore entitled to overtime). In the event that their claims for overtime were to fail, they also claimed the Winsor allowances in the alternative.

The defence against the claims – which was led by our team at Weightmans – accepted that the officers were frequently on call overnight, and as such were entitled to the on-call allowance.

But the claims were otherwise defended in full on the grounds that the officers:

a) Were not on duty at the relevant times, and not therefore entitled to overtime, regardless of whether they had to retain a firearm overnight;

b) Were not eligible for the Away from Home allowance as they did not meet the eligibility requirements set out in Annex U, which require an officer to be working away from their ‘normal place of duty’, and also required to stay in a particular place overnight ‘by reason of the need to be ready for immediate deployment’;

c) Were additionally excluded from claiming the Away from Home allowance because it was routine for them to travel in their roles and stay away overnight, with there being an express exclusion in the Annex U determination when ‘carrying out routine inquiries’; and

d) Had already been properly paid for the hours they worked (including being paid a fixed number of additional hours of pay by way of compensation for the occasions when working away from home overnight).

The main battleground in the case centred on two main issues:

a) Were the responsibilities of the close protection officers, in particular when required to retain firearms overnight, sufficiently onerous to mean they were in fact on duty?

b) Had the Commissioner and her chief officers lawfully determined that RaSP protection officers did not meet the eligibility criteria of the Away from Home allowance and/or were excluded because they were carrying out ‘routine inquiries’ when working away from home?

What did the judge decide?

The judge, Mr Justice Kerr, dismissed both claims in full.

With regard to the Fielding claims for overtime, he rejected the suggestion of the claimants that there is a binary distinction of either being on or off duty – the very existence of the on-call allowance demonstrates a state in between these two extremes.

The claims for the Away from Home allowances were dismissed on the basis that the requirements for the allowance were not met by RaSP officers. They were not working away from their ‘normal place of duty’ because they had no fixed place of duty.

Mr Justice Kerr also found that it was within a chief officer’s power to determine an officer’s ‘role or normal duties’, including whether there was an expectation within that role or those duties that the officer must travel or work away from home.

It was therefore lawful for the Commissioner and her chief officers to have determined that RaSP officers were not entitled to the allowance as it was a routine part of their roles to travel (ie, they were carrying out ‘routine inquiries’ within the meaning of the Annex U determination and were therefore excluded).

What does this mean for forces?

This ruling will reassure forces of their entitlement to define what ‘routine work’ means for certain types of officer, and to decide which officers are and are not eligible for the Away from Home allowance.

It should provide some welcome clarification that has been sought ever since the Winsor allowances were first introduced in 2012, and should also help achieve more consistency across all police forces nationally as to how they apply the Away from Home allowance (including during any mutual aid events).

The decision regarding the officers being on call rather than on duty is also of potential wider significance outside of policing.

While RaSP officers are very specialist in the nature of the work they carry out, the principle of what constitutes ‘work’ is a general one. As Mr Justice Kerr made clear in his judgment, “on call arrangements are common not just in the police forces; doctors and judges, among others, observe such arrangements. There is nothing unusual about them”.

A finding that the officers were entitled to overtime payments, rather than the on-call allowance, could have left many police forces facing a significant ongoing liability, as well as backdated claims from officers in similar roles.

Lewis Hough is a principal associate at Weightmans LLP and has experience of handling a wide variety of litigated claims. He currently works in the local government and police team and advises police forces across England and Wales regarding a range of civil liabilities including false imprisonment, assault, malicious prosecution, misfeasance in public office, negligence, data protection issues, and claims under the Human Rights Act and Equality Act. He also regularly deals with Judicial Review claims issued against police forces and local authorities.