Weightmans successfully defends Metropolitan Police in a recent case involving debt claims

Weightmans, acting on behalf of the Metropolitan Police Service, have successfully defended an appeal brought by 397 Royalty and Specialist Protection (‘RaSP’) Officers following an appeal hearing that concluded on 13 December 2022.

Executive summary

The Court of Appeal has unanimously dismissed the appeal brought by 397 RaSP Officers who were seeking to claim a debt of circa £24 million. The officers failed in their attempt to overturn the judgment of Mr Justice Kerr following the High Court trial that concluded on 23 July 2021 (citation [2021] EWHC 2672 (QB)).

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’ whom 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 High Court judgment

Mr Justice Kerr dismissed both claims in full in his judgment dated 8 October 2021.

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).

The Court of Appeal judgment

The ‘Fielding appellants’ did not appeal the High Court decision to dismiss the claims for overtime. The appeal only sought to overturn the decision to dismiss the claims for the Winsor allowances. The grounds of appeal were:

• The trial judge had erred in construing the meaning of “normal place of duty” in particular by conflating a normal place of duty with a temporary place of duty.
• If the judge was correct in holding that officers’ “normal place of duty” could change rapidly and frequently, he was nevertheless wrong to find that the meaning of “normal place of duty” changed immediately rather than after a specified period by reference to whether the deployment to a location was genuinely temporary in nature and/or by reference to the officer’s base.
• The judge erred in failing to hold that the appellants’ duties fell outside the meaning of “routine enquiries” and misconstrued the term to include routine duties.

Lady Justice Simler ruled (with Lady Justice King and Lord Justice Bean in agreement) that:

• The trial Judge made no error of law or fact in interpreting Annex U and applying this to RaSP officers
• The ‘normal place of duty’ for a Close Protection Officer or AZTEC officer is with their Principal, wherever that may be
• The ‘normal place of duty’ for a Static Protection Officer is the royal palace, residence, or building they are deployed to work at, and this would change as they move from one residence to another
• As such, RaSP protection officers are not serving away from their normal place of duty when performing their normal duties, and it follows from this that they cannot qualify for the Away From Home/Hardship allowances when carrying out their normal duties (serving away from an officer’s normal place of duty being the first requirement to qualify for the allowances).
• Whether or not RaSP officers were additionally excluded from the allowances by virtue of carrying out ‘routine enquiries’ (i.e. the exception in para 11(c) of Annex U) did not therefore need to be determined. However, LJ Simler commented that “if it were necessary to do so, I would suggest that “routine enquiries” means the regular activities of the officer’s role” (i.e. they would also be excluded for this reason).

The appeal was therefore dismissed in full.

Comment

This Court of Appeal decision upholds the original judgment of Mr Justice Kerr regarding RaSP officers not being entitled to the Winsor allowances (when carrying out their normal duties). It is a decision that will be of interest not just to the Metropolitan Police Service, but to all police forces which have protection officers, and other officers working in more niche roles that involve frequent travel and overnight stays as a routine part of the role.

The decision should provide police forces with further reassurance about their entitlement to define what ‘routine work’ means for certain types of officers and decide which officers are and are not eligible for the Away from Home allowance.