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Legal case

Police officers working away from home overnight - on duty or on call?

The much anticipated judgment on the claims made by officers for unpaid overtime and allowances of £24m

In the case of Prior and 128 others & Fielding & 267 others v The Commissioner of Police of the Metropolis [2021] EWHC 2672 (QB), Weightmans, acting on behalf of the Metropolitan Police Service, have successfully defended a significant debt claim for circa £24 million brought by her own officers.

Executive summary

In a much-anticipated judgment for police forces and police officers across the UK, the High Court has ruled that:

  • Specialist firearms officers working in the ‘Royalty and Specialist Protection’ Command (“RaSP”) of the Metropolitan Police Service were not entitled to overtime payments on occasions they worked away from home overnight.
  • Additionally, the RaSP officers were also not entitled to payment of the ‘Away from Home’ allowance or the linked ‘Hardship’ allowance (contained in Annex U of the Police Regulations 2003).

Background

A total of 397 officers from the RaSP Command brought claims 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’. They claimed a debt for unpaid allowances on numerous occasions dating back to July 2012. They claimed the ‘Away from Home’ allowance (£50 per night), the linked ‘Hardship’ allowance (£30 per night if away from home and having to share a room or a bathroom) and the ‘on-call’ allowance (£15 per night paid if designated to be on call overnight). Collectively, these allowances are known as the “Winsor allowances” having their origins in the reports by Sir Thomas Winsor published in 2011 and 2012.
  • The officers in the ‘Fielding’ proceedings were all ‘Close Protection Officers’. 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 to the claims accepted that the officers were frequently on-call overnight (and as such were entitled to the on-call allowance) but otherwise defended the claims on the grounds that the officers:

  • Were not on duty at the relevant times (and not therefore entitled to overtime) regardless of whether they had to retain a firearm overnight
  • 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’)
  • 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 their being an express exclusion in the Annex U determination when ‘carrying out routine enquiries’
  • 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:

  • 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?
  • 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 enquiries’ when working away from home?

The judgment

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. He adopted the logic of the Supreme Court in Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8. Whilst that case was set in the care sector, and involved different statutory provisions, the proposition that a person is unlikely to be working while asleep is a general one”. As in Mencap, the officers were available for work, or “in a state of readiness to be recalled to work”, but were not actually working.

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 – “the RaSP roles are by their nature peripatetic and not tied to any particular location”.

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 lawful therefore 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 (i.e. they were carrying out ‘routine enquiries’ within the meaning of the Annex U determination and were therefore excluded).

Comment

This is an important decision regarding pay and conditions for all police forces. It should provide police forces with reassurance about their entitlement to define what ‘routine work’ means for certain types of officer and decide which officers are and are not eligible for the Away from Home allowance.

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.

The decision is also of potential wider significance outside of policing. Whilst 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”.

The decision is therefore likely to be welcomed by employers in both the private and public sector alike who may be faced with similar pressure for additional pay from employees and their representatives (where those employees have additional responsibilities or expectations outside of work hours).

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