,

Prepared for Unknown by ICLR

The WLR Daily case summaries

[2021] WLR(D) 533

Queen’s Bench Division

Prior and others v Commissioner of Police of the

Metropolis

Fielding and others v Commissioner of Police of

the Metropolis
[2021] EWHC 2672 (QB)

2021 July 5–8, 12–16, 19, 23; Oct 8

Kerr J

Police— Remuneration — Overtime— Specialist protection officers retaining firearms on overnight stays
with principal— Whether on duty throughout night and entitled to overtime payments — Whether
“held in reserve” and entitled to “away from home” allowance— Police Regulations 2003 (SI
2003/527), reg 25

The two groups of claimants were Royal and Specialist Protection police officers, trained and qualified in the
use of firearms, who were assigned to the protection of persons of rank or importance. The officers’ role, in
many cases, necessarily and frequently required them to stay overnight away from home and to
accompany their “principal” when they travelled. The second group of claimants asserted that when they
retained a firearm on such an overnight stay they remained on duty throughout the night and were
therefore entitled, pursuant to regulation 25(1) of the Police Regulations 2003, to overtime payments. In
the alternative, and together with the first group of claimants, it was asserted that the officers were “held in
reserve”, as described in paragraph 11 of Annex U of Determinations made under the Regulations by the
Secretary of State, during that time with the consequence that they were entitled to the additional “away
from home” remuneration allowance set out in paragraph 11 of Annex U. The police commissioner accepted
that, in some circumstances specified by a number of the officers, they were entitled to a lower “on call”
allowance and highlighted that many of the officers were eligible for and had received a “special escort
allowance” which compensated officers for long hours worked and time spent away from their homes.
Otherwise the claims were resisted on the grounds that (i) maintaining a state of readiness for duty if
required did not amount to remaining on (or being recalled to) duty; and (ii) where protection officers were
carrying out their “routine enquiries” at their “normal place of duty” they were not held in reserve as
envisaged by the Determinations made by the Secretary of State nor entitled to the resultant away from
home allowance. The claims were limited to events occurring within a defined historic period following the
introduction of a further determination bringing into effect a new “protection allowance” and replacing the
previous ambiguous wording and allowances.

On the claims—

Held, claims dismissed. (1) The structure of the Police Regulations 2003, the Determinations and the
negotiating history between the parties did not support the officers’ notion of a binary distinction between
being on duty or off duty. The on call allowance, and the criteria for entitlement to it, demonstrated the
existence of a state between the two extremes where an officer was neither fully on duty nor fully off duty.
It was, therefore, not the case that an officer was necessarily on “duty” in the fullest sense merely because
they remained in a state of readiness to start a period of full “duty” after being stood down for the night.
Regulation 25(2) of the 2003 Regulations made that point clear. The officers’ readiness for immediate
deployment did not denote anything more than readiness to be recalled to duty when on call. Accordingly,
the second group of claims were to be dismissed (paras 115, 116, 122, 125, 127, 235).

Allard v Chief Constable of Devon and Cornwall Constabulary [2015] ICR 875, CA and Royal Mencap
Society v Tomlinson-Blake [2021] ICR 758, SC(E) considered.

(2) The specialist protection roles fulfilled by the officers were, by their very nature, at least potentially
peripatetic and not tied to any particular location as a normal place of duty. The officers were required to
deploy away from home not just by way of exception to a normal role performed from home but as part of
their normal duties. That did not mean that such officers had no normal place of duty, or more than one
normal place of duty, but that they had one normal place of duty which changed rapidly and frequently as
they moved around with their principal or otherwise in the performance of their duties. That was true of all
types of specialist protection officer whether they were assigned to protect a mobile individual or to a
prominent location for a prolonged period, since all could be rapidly relocated as part of their duties.
Therefore, the officers were not “held in reserve” within paragraph 11 of Annex U because they were not
serving away from their normal place of duty even if they were accompanying a principal from one place to
another, whether within the United Kingdom or overseas, and they were therefore not entitled to payment
of the away from home allowance. The phrase “routine enquiries”, associated with the conventional
paradigm police function of detecting crime and enforcing the criminal law, in paragraph 11 of Annex U
included plenty of police duties that were not really enquiries at all but it was unnecessary to probe further
in light of the conclusion that the officers were not working away from normal place of duty. Accordingly,
the remaining claims also failed (paras 160–162, 172–179, 180–182, 186, 189, 196, 235).

General points to assist in the interpretation of paragraph 11 of Annex U of the Determinations made under
the Police Regulations 2003 by the Secretary of State (paras 162–172, 190–194).

Elliot Gold and Jonathan Davies (instructed by Simons Muirhead Burton LLP) for the police officers.

Jason Beer QC and Jonathan Dixey (instructed by Weightmans LLP) for the police commissioner.

THOMAS BARNES, Solicitor