Matthews and others v Kent & Medway Towns Fire Authority and others
[3.MB]KWA WAKUBWA TU ,KUANGALIA VIDEO YAO WAKIBANDUANA CHUMBANI BONYEZA HAPA CHINI 18++
KUTIZAMA PICHA ZAKE NA VIDEO ZAKE ALIZO PIGA AKIWA UCHI NI RAHISI BONYEZA HAPA CHINI
[2006]
UKHL 8
CONTRACT: EMPLOYMENT; Contract of Service,
Discrimination
HOUSE OF LORDS
LORD
NICHOLLS OF BIRKENHEAD, LORD HOPE OF CRAIGHEAD, BARONESS HALE OF RICHMOND, LORD
CARSWELL AND LORD MANCE
11,
12 JANUARY, 1 MARCH 2006
Employment – Employee – Part-time employee –
Prevention of less favourable treatment – Retained firefighters employed
part-time – Whether retained firefighters treated less favourably than
full-time firefighters – Whether employed under same type of contract – Whether
engaged in same or broadly similar work – Part-time Workers (Prevention of Less
Favourable Treatment) Regulations 2000, SI 2000/1551, regs 2(3), (4).
The fire services employed both whole-time
firefighters and ‘retained firefighters’ who worked part time. The Part-time Workers (Prevention of Less
Favourable Treatment) Regulations 2000 provided that a part-time worker had the
right not to be treated by his employer less favourably than the employer
treated a ‘comparable full-time worker’. Under reg 2(4)(a)a of the 2000 regulations a full-time worker was
a comparable full-time worker in relation to a part-time worker if both workers
were employed by the same employer under the same type of contract and engaged
in the same or broadly similar work.
Regulation 2(3) specified that ‘the following shall be regarded as being
employed under different types of contract—(a) employees employed under a
contract that is neither for a fixed term nor a contract of apprenticeship
…’ Subparagraphs (b)–(e) continued with
categories relating to and differentiating between employees and workers,
contracts for a fixed term and contracts not for a fixed term, and contracts of
apprenticeship. The final sub-para (f)
read ‘any other description of worker that it is reasonable for the employer to
treat differently from other workers on the ground that workers of that description
have a different type of contract’.
Retained firefighters and whole-time firefighters were both employed
under a contract that was neither for a fixed term nor a contract of
apprenticeship. Certain retained
firefighters brought proceedings in an employment tribunal against their
employers and the Secretary of State for the Home Department under the 2000
regulations. The tribunal, and on
appeal, the Employment Appeal Tribunal, held that those employees were not
employed under the same type of contract as whole-time firefighters and that
they were not engaged in the same or broadly similar work as whole-time
firefighters who had measurable additional job functions. On the employees’ appeal the Court of Appeal
held that the employees were employed under the same type of contract as
whole-time firefighters but upheld the tribunal’s decision that the work was
not the same or broadly similar. On
appeal to the House of Lords the employers contended, inter alia, that para (f)
of reg 2(3) could take an employment relationship which would otherwise fall
within paras (a)–(e) (which were mutually exclusive) into a different
category. The employees contended, inter
alia, that each of paras (a)–(f) was exclusive of the others.
________________________________________
a Regulation 2, so far as material, is set out
at [26], [27], [28], below
________________________________________
171
Held – (1) (Lord Mance dissenting) The
different categories of working relationship listed in reg 2(3) of the 2000
regulations, within which part-time and full-time workers were to be regarded
as comparable but between which they were not, were mutually exclusive. Regulation 2(3)(f) could not be designed to
allow employers to single out particular kinds of part-time working arrangements
and treat them differently from the rest.
Accordingly, retained and whole-time firefighters were employed under
the same type of contract for the purpose of reg 2(4)(a) (see [1], [9], [12],
[34]–[38], [53], below).
(2) (Lord Carswell dissenting) The question under reg
2(4)(a) was whether the work on which full-time and part-time workers were
engaged was the same or broadly similar, not whether it was different. That
question had to be approached in the context of regulations which were inviting
a comparison between two types of worker whose work would almost inevitably be
different to some extent. In answering
the question particular weight was to be given to the extent to which the work
of the full-time and part-time workers was in fact the same and to the
importance of that work to the enterprise as a whole. Otherwise the risk would be run of giving too
much weight to differences which were the almost inevitable result of one
worker working full-time and another working less than full-time. That had not been the approach of the
tribunal. Accordingly, the instant case
would be remitted for reconsideration of the question whether the retained and
whole-time firefighters were engaged in the same or broadly similar work (see
[1], [20], [21], [43], [44]–[47], [50], below).
Decision of the Court of Appeal [2004] 3 All ER 620
reversed in part.
Notes
For less favourable treatment of part-time workers, see
16(1A) Halsbury’s Laws (4th edn reissue) para 63.
Regulation 2(3) of the Part-time Workers (Prevention
of Less Favourable Treatment) Regulations 2000, SI 2000/1551 was substituted by
reg 2(a) of the Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000 (Amendment) Regulations 2002, SI 2002/2035, with effect from 1
October 2003. The amended regulation
removes the distinction between fixed-term and permanent contracts for the
purposes of ascertaining what are different types of contract for the purpose
of the 2000 regulations, but amended reg 2(3)(d) has the same wording as unamended
reg 2(3)(f).
For the Part-time Workers (Prevention of Less
Favourable Treatment) Regulations 2000, SI 2000/1551, reg 2, see 7 Halsbury’s
Statutory Instruments (2005 issue) 292.
Cases referred to in opinions
Angestelltenbetriebsrat
der Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse Case C-309/97
[1999] IRLR 804, [2000] ICR 1134, [1999] ECR I-2865, ECJ.
Edwards (Inspector
of Taxes) v Bairstow [1955] 3 All ER 48, [1956] AC 14, [1955] 3 WLR
410, HL.
Wippel v Peek &
Cloppenburg GmbH & Co KG Case C-313/02 [2005] IRLR 211, [2005] ICR
1604, ECJ.
Yeboah v Crofton [2002]
EWCA Civ 794, [2002] IRLR 634.
Cases referred to in list of authorities
Brunnhofer v Bank der
österreichischen Postsparkasse AG Case C-381/99 [2001] All ER (EC) 693,
[2001] ECR I-4961, ECJ.
172
Equal Opportunities
Commission v Secretary of State for Employment [1994] 1 All ER 910, [1995]
1 AC 1, [1994] 2 WLR 409, HL.
Hall (Inspector
of Taxes) v Lorimer [1994] 1 All ER 250, [1994] ICR 218, [1994] 1
WLR 209, CA.
Hollister v National
Farmers’ Union [1979] IRLR 238, [1979] ICR 542, CA.
Lawrence v Regent
Office Care Ltd Case C-320/00 [2002] IRLR 822, [2003] ICR 1092, [2002] ECR
I-7325, ECJ.
Leverton v Clwyd CC [1989]
1 All ER 78, [1989] AC 706, [1989] 2 WLR 47, HL.
Magorrian v Eastern
Health and Social Services Board Case C-246/96 [1998] All ER (EC) 38,
[1998] ICR 979, [1997] ECR I-7153, ECJ.
Marleasing SA v La
Comercial Internacional de Alimentacion SA Case C-106/89, [1990] ECR I-4135
[1992] 1 CMLR 305, ECJ.
Martin v MBS
Fastenings (Glynwed) Distribution Ltd [1983] IRLR 198, [1983]
ICR 511, CA.
Montgomery v Johnson
Underwood Ltd [2001] EWCA Civ 318, [2001] IRLR 269, [2001] ICR 819.
Piggott Bros & Co
Ltd v Jackson [1991] IRLR 309, [1992] ICR 85, CA.
Quazi v Quazi
[1979] 3 All ER 897, [1980] AC 744, [1979] 3 WLR 833, HL.
R v Immigration
Appeal Tribunal, ex p Shah (United Nations High Comr for Refugees
intervening), Islam v Secretary of State for the Home Dept (United
Nations High Comr for Refugees intervening) [1999] 2 All ER 545, [1999] 2
AC 629, [1999] 2 WLR 1015, HL.
R v Secretary of
State for Employment, ex p Seymour-Smith [2000] 1 All ER 857, [2000] ICR
244, [2000] 1 WLR 435, HL.
R v Secretary of
State for Employment, ex p Seymour-Smith Case C-167/97 [1999] All ER (EC)
97, [1999] 2 AC 554, [1999] 3 WLR 460, [1999] ECR I-623, ECJ.
R v West Yorkshire
Fire and Civil Defence Authority, ex p Lockwood, R v West Yorkshire Fire and
Civil Defence Authority, ex p McCalman [2001] OPLR 85, CA.
Shamoon v Chief
Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] 2 All ER 26, [2003] ICR 337.
Stadt Lengerich v
Helmig, Schmidt v Deutsche Angestellten-krankenkasse, Herzog v
Arbeiter-Samariter-Bund Landverband Hamburg eV Bochum, Kussfeld v Firma Detlef
Bogdol GmbH, Ludewig v Kreis Segeberg Case C-399/92 [1995] IRLR 216, [1996]
ICR 35, [1994] ECR I-5727, ECJ.
Suffolk CC v
Secretary of State for the Environment [1985] IRLR 24, [1984] ICR 882, HL.
Vroege v NCIV
Instituut voor Volkshuisvesting BV Case C-57/93 [1995] All ER (EC) 193,
[1995] ICR 635, [1994] ECR I-4541,ECJ.
Appeal
Bruce Robert Matthews and 11,566 other retained
firefighters including Barry George Griffin, Christopher Foster, Darren Lee
Rosewell, Gary Foster, Gary Richard Willis, Gene Aron Mason, Glenville Stephen
Varrall, Leslie Chappell, Martin Lee Kerby, Petere Norman Welsh, Ralph Webb and
Colin Frederick Elliott appealed with permission of the House of Lords Appeal
Committee given on 9 November 2004 from the decision of the Court of Appeal
(Jonathan Parker, Longmore and Maurice Kay LJJ) on 2 July 2004 ([2004] EWCA Civ
844, [2004] 3 All ER 620) dismissing their appeal from the decision of the
Employment Appeal Tribunal (Judge Birtles, C Baelz and B Switzer) handed down
on 7 August 2003 dismissing their appeal from the decision of the employment
tribunal on 22 July 2002 dismissing their claims against the Kent and
173
Medway Towns Fire Authority, the Royal Berkshire Fire and
Rescue Services and the Secretary of State for the Home Department under reg 5
of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations
2000. The facts are set out in the
opinion of Baroness Hale of Richmond.
Robin Allen QC
and Martin Seaward (instructed by Thompsons) for the appellants.
John Bowers QC
and Jeremy Lewis (instructed by Beachcroft Wansbroughs) for Kent
and Medway Towns Fire Authority and the Royal Berkshire Fire and Rescue
Services.
Nicholas Paines QC
and Raymond Hill (instructed by the Treasury Solicitor) for the
Secretary of State.
Their Lordships took time for consideration.
1 March 2006.
The following opinions were delivered.
LORD NICHOLLS OF BIRKENHEAD.
[1] My Lords, I have had the advantage of
reading in draft the speeches of my noble and learned friends Lord Hope of
Craighead and Baroness Hale of Richmond.
For the reasons they give, with which I agree, I would allow this appeal
and make the order proposed by Baroness Hale.
LORD HOPE OF CRAIGHEAD.
[2] My Lords, the appellants in this appeal
are retained firefighters. They claim
that they have been unlawfully discriminated against as to their conditions of
employment as compared with those of whole-time firefighters. The claim is made under the Part-time Workers
(Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/1551. Regulation 5(1) provides that a part-time
worker has the right not to be treated by his employer less favourably than the
employer treats a comparable full-time worker.
But before that regulation can be applied there are a number of
definitions laid down by the 2000 regulations that need to be satisfied. It is agreed that retained firefighters are
workers as defined by reg 1(2) and that they are part-time workers for the
purposes of the 2000 regulations within the meaning of reg 2(2). It is also agreed that whole-time
firefighters are full-time workers for the purposes of the 2000 regulations
within the meaning of reg 2(1). The
question is whether whole-time firefighters are comparable full-time workers
within the meaning of reg 2(4). Unless
this definition is satisfied it will not be possible to make the comparison
referred to in reg 5(1).
[3] I have had the advantage of reading in
draft the speech of my noble and learned friend Baroness Hale of Richmond. As she explains, reg 2(4) sets out the
conditions that must be satisfied in order to determine whether a full-time
worker with whom a part-time worker seeks to be compared is a comparable
full-time worker. Among other things,
both workers must be employed by the same employer ‘under the same type of
contract’ (see reg 2(4)(a)(i)). And they
must both be engaged ‘in the same or broadly similar work’ having regard, where
relevant, to whether they have a similar level of qualification, skills and
experience (see reg 2(4)(a)(ii)).
[4] Directions as to the situations in which
full-time and part-time workers are to be regarded as being employed under
different types of contract for the purposes of reg 2(4) are given in reg
2(3). A list is given in paras (a)–(e)
of five
174
kinds of employee or worker whose contracts are to be
regarded as of a different type. It
follows that, where both workers are employed under contracts that answer to
the description given in the same paragraph, they are both to be regarded as
employed under the same type of contract for the purposes of reg 2(4). They are workers as between, assuming that
the other requirements of reg 2(4) are satisfied, it is not permissible for the
employer to discriminate unless he can justify this on objective grounds under
reg 5(2)(b).
[5] It is agreed that retained firefighters
and whole-time firefighters are both employed under a contract that is neither
for a fixed term nor a contract of apprenticeship. This is a type of contract of the kind
described in para (a). There is however
one other paragraph in reg 2(3) that has to be considered. Paragraph (f) adds to the list ‘any other
description of worker that it is reasonable for the employer to treat
differently from other workers on the ground that workers of that description
have a different type of contract’.
There is a difference of opinion among your Lordships as to whether the
Court of Appeal were right to hold that retained firefighters were employees of
the type described in para (a), not workers of the description given in para
(f) (see [2004] EWCA Civ 844, [2004] 3 All ER 620, [2005] ICR 84). The question is one of construction. What does para (f) mean, when its words are construed
according to their ordinary meaning in the context of the regulation read as a
whole, having regard to the purpose of the regulation? This is a question of general public
importance too. The answer that is given
to it will affect all part-time workers who seek the protection of the 2000
regulations, not just retained firefighters.
[6] It is convenient to look first at the
purpose of reg 2(3). As its opening
words make clear, its function is to provide a definition of what are to be
regarded as different types of contract for the purposes of paras (1), (2) and
(4) of the regulation, all of which direct attention to the question whether
workers are employed by the employer under the same type of contract. Clause 3.2 of the Framework Agreement annexed
to Council Directive (EC) 97/81 defines the term ‘comparable full-time worker’
for the purposes of the agreement as a full-time worker in the same establishment
having the same type of employment contract or relationship who is engaged in
the same or a similar work/occupation, due regard being given to other
considerations which may include seniority and qualification/skills. This is the clause in the Framework Agreement
to which reg 2(4) gives effect.
[7] There is no separate definition in cl 3 of
the Framework Agreement of what is meant by the expression ‘the same type of
contract’. But one can derive from the
way cl 3.2 is framed that the question whether a full-time worker is employed
under the same type of contract as a part-time worker is to be approached
broadly, having regard to the purpose of the agreement set out in cl 1. This is to provide for the removal of
discrimination against part-time workers and to improve the quality of
part-time work, to facilitate the development of part-time work on a voluntary
basis and to contribute to the flexible organisation of working time in a
manner which takes into account the needs of employers and workers. The use of the word ‘type’ fits in with this
approach. When one thinks of a type of
person or a type of car, for example, one looks for a broad characteristic that
separates one type from another. One
ignores the many variations and differences within each type and looks instead
for something that brings them all together within the same category. An over-precise view as to what makes one
type of contract different from another would tend to undermine the purpose of the
agreement.
175
[8] The wording of the first five paragraphs
of reg 2(3) adopts this approach. The
descriptions that are given here are broad.
They do not suggest that a contract can be treated as being of a different
type from another just because the terms and conditions that it lays down are
different. Nor do they suggest that a
contract can be treated as being of a different type just because the employer
chooses to treat workers of a particular type differently. The underlying purpose seems to be to ensure
that it is not left to the employer to decide whether or not to treat persons
falling within the same category differently.
On the contrary he is not permitted to discriminate between them if they
fall within the same category, assuming that the other parts of reg 2(4) are
satisfied, unless he can justify the different treatment on objective grounds
under reg 5(2). By listing the various
categories in the way it does, it suggests that all that one needs to do in
order to satisfy the requirements of reg 2(4)(a)(i) is to find that both
workers are employed under contracts that fit into one or other of the five
listed categories. The question is
whether para (f) departs from this approach.
Does it add something new, or does it require one to revisit the
previous categories?
[9] In my opinion the wording of para (f)
suggests that it is adding something new.
In its opening words it refers to ‘any other description of
worker’ (my emphasis). These words, on
their own, seem to indicate that we are being asked here to examine a type of
worker who is different from any of those previously mentioned. It then goes on to qualify the opening
words. But it does so in a way that does
not take anything away from the initial impression that we are dealing here
with a type of worker, or perhaps various types of workers, who are different
from those previously mentioned.
[10] Paragraph (f) tells us that we are
dealing now with any other description of worker that it is reasonable for the
employer to treat differently from other workers, ‘on the ground that workers
of that description have a different type of contract’. It is the fact that they have a type of
contract which is different from other types of contract that enables the
employer to treat them differently, if it is reasonable for him to do so. This wording also permits workers of several
different descriptions to be treated differently from each other on this ground
under this paragraph. It is the fact
that they have a different type of contract, not that the terms and conditions
of their employment are different, that enables the employer to treat them
differently from other workers. The
breadth of the meaning to be given to the expression ‘type of contract’ is
indicated by the categories mentioned in the preceding paragraphs, which are defined
broadly in a way that allows for a wide variety of different terms and
conditions within each category. This
protects the part-time worker from terms and conditions that treat him less
favourably in comparison with those that apply to full-time workers in the same
category unless the difference of treatment can be objectively justified.
[11] Everyone agrees that it is difficult to
think of a type of contract which is different from those mentioned elsewhere
in the list. But I do not think that this
prevents para (f) from being treated as adding something new to the list which
will not be reached if a worker falls into one or other of the previous
categories. It is sufficient to say, to
give it some meaning, that it is there to fill any gaps that may have been
left, as a long stop or residual category.
The list as a whole makes it unnecessary to carry out the kind of
fact-finding exercise that my noble and learned friend Lord Mance envisages. Its purpose, after all, is simply to identify
in a broad and simple fashion the types of contract that enable workers to be
176
treated as comparable workers for the purpose of
applying the less favourable treatment rules that Pt II of the 2000 regulations
identifies.
[12] For these reasons, and those given by
Baroness Hale with which I entirely agree, I would hold that the Court of
Appeal were right on this point. This
makes it necessary to consider whether the other part of the definition in reg
2(4)(a)(ii) is also satisfied. Are
retained firefighters and whole-time firefighters engaged in ‘the same or
broadly similar work’, having regard to whether they have a similar level of
qualification, skills and experience?
[13] The Employment Tribunal heard evidence on
this issue during a hearing which extended over nine days in November
2001. A further day was needed in
February 2002 for evidence on a variety of issues on pensions and five more
days were taken up with a consideration of the evidence. The decision which the tribunal delivered on
22 July 2002 was commendably detailed and clear in its reasoning. The question which they had to decide was
essentially one of fact. The Employment
Appeal Tribunal found no error of law in its decision (see [2003] IRLR 732,
[2004] ICR 257), and the Court of Appeal were not persuaded that the decision
was perverse or that the tribunal misdirected itself (see [2004] 3 All ER 620,
[2005] ICR 84).
[14] The wording of reg 2(4)(a)(ii) identifies
the matters that must be inquired into.
One must look at the work that both the full-time worker and the
part-time worker are engaged in. One
must then ask oneself whether it is the same work or, if not, whether it is
broadly similar. To answer these questions
one must look at the whole of the work that these kinds of worker are each engaged
in. Nothing that forms part of their
work should be left out of account in the assessment. Regard must also be had to the question
whether they have a similar level of qualification, skills and experience when
judging whether work which at first sight appears to be the same or broadly
similar does indeed satisfy this test.
But this question must be directed to the whole of the work that the two
kinds of worker are actually engaged in, not to some other work for which they
may be qualified but does not form part of that work.
[15] It is important to appreciate that it is
the work on which the workers are actually engaged at the time that is the
subject matter of the comparison. So the
question whether they have a similar level of qualification, skills and
experience is relevant only in so far as it bears on that exercise. An examination of these characteristics may
help to show that they are each contributing something different to work that
appears to be the same or broadly similar, with the result that their
situations are not truly comparable. But
the fact that they may fit them to do other work that they are not yet engaged
in, in the event of promotion for example, would not be relevant.
[16] The key passages in the tribunal’s
decision are to be found at [152]–[154].
They referred (at [152]) to their conclusions of fact about the
particular methods of working of the retained fire fighter service and the way
the whole operation had been geared to focus the working duties of the retained
fire fighter substantially on the emergency call out fire fighting role. They then said that it was not in dispute
that the fire fighting role was the central and most important job function of
the retained fire fighter and a major part of the job role of the whole-time
fire fighter. But they also found that
there were measurable additional job functions which were carried out by
whole-time firefighters. On that ground
alone they held that the job of the whole-time fire fighter was a ‘fuller wider
job’ than that of the retained fire fighter.
177
[17] The tribunal found (at [153]) that,
because of entry standards, probationary standards, probationary training and
ongoing training, there were material differences in the level of qualification
and skills between the retained fire fighter and the whole-time fire
fighter. As for experience, they found
that retained firefighters who put in a large number of hours could develop
this characteristic to an impressive level.
They set out their overall conclusion at [154], putting together the
fuller wider role and the higher level of qualification and skills. They held that the retained fire fighter
could not establish comparability with his full-time counterpart.
[18] It seems to me that there is a weakness
in the way the tribunal dealt with differences in the level of qualification
and skills between the two kinds of worker.
It would not be right to subject the tribunal’s reasoning to an unduly
critical analysis, especially in view of their assurance (at [5]) that they did
in the end stand back and look at the whole picture. But I think their reasons show that they
failed to appreciate that the question whether the two kinds of worker had a
similar level of qualification, skills and experience was relevant only in so far
as it bore on the exercise of assessing whether the work that they were
actually engaged in was the same or broadly similar. They did not ask themselves whether these
characteristics showed that they were each contributing something different to
that work. They treated the fact that
there were differences in the levels of skills and experience as an additional
factor leading to the conclusion that comparability could not be established,
without assessing the extent to which these differences affected the work that
the two different kinds of worker were actually engaged in. It would not have been impossible for them to
have come to the conclusion that these differences did indeed affect the work
that they were engaged in, for the reasons that my noble and learned friend
Lord Carswell indicates. But they did
not address the issue in that way. In my
opinion this defect in their reasoning amounted to a misdirection on a point of
law.
[19] This criticism on its own does not lead
to the conclusion that the decision as a whole is defective. The appellants have to show that it was not
open to the tribunal to conclude, as they did (at [154]), that the work of the
whole-time fire fighter was not comparable with that of the retained fire
fighter. It has not been suggested that
the tribunal were not entitled to find that there were differences between the
work done by these two groups of workers, with the result that the work they
were engaged in was not ‘the same’ work.
The question whether it was ‘broadly similar’ was, as these words
indicate and my noble and learned friend Lord Carswell points out, a question
of fact and degree which one would have thought the tribunal having heard the
evidence were best placed to answer.
[20] I am not confident however that the
tribunal gave sufficient weight to the extent to which the work on which both
groups of firefighters were engaged was ‘the same’ work. The painstaking way in which they addressed
themselves to the various differences was a necessary and admirable reaction to
the way the evidence was presented and the issues were argued before them. But it led them to concentrate on the
differences and not to assess the weight that ought to be given to the
similarities. Their conclusion that the
job of the whole-time fire fighter was a fuller wider job than that of the
retained fire fighter was not, as they appear to have thought, the end of the
exercise. They still had to address the
question posed by the statute which was whether, notwithstanding the fact that
the job of the whole-time fire fighter was a fuller and wider job, the work on
178
which both groups were engaged could nevertheless be
described as broadly similar.
[21] The tribunal held (at [154]) that,
putting together the fuller wider role and the higher level of qualification
and skills which they found to be the inevitable inference from the evidence
before them, the necessary comparability could not be established. The way this sentence is expressed indicates
to me that they did not take the final and vital step of addressing their
minds, in the light of these findings, to the test laid down by the
statute. For these reasons, and those
given more fully by Baroness Hale with which I agree, I think that the decision
which they reached was defective and must be set aside. I would allow the appeal and make the order
which she proposes.
BARONESS HALE OF RICHMOND.
[22] My Lords, it may not be generally
appreciated that a large proportion of the operational firefighters in the
United Kingdom are part-timers, ‘retained’ to turn out when required, rather
than whole-timers, working on a shift system.
According to the 2001–02 estimates supplied to us, there were around
18,300 retained firefighters and 38,600 whole-time firefighters in the whole
country, but the proportion of part-timers was much higher in the shire areas,
Wales, Scotland and Northern Ireland, than in the metropolitan areas. More fire stations are manned by retained
firefighters than by whole-timers. It is
clear, as a recent Audit Commission Report put it, that retained firefighters
provide cover for large areas of the country.
Their working patterns and some of their terms of employment are
significantly different from those of the whole-timers. The issue for us is whether their employment
falls to be compared with that of the whole-timers for the purpose of the
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000,
SI 2000/1551.
[23] This depends upon the answers to two
questions. First, are both whole-timers
and part-timers ‘employed … under the same type of contract’? Second, are they
‘engaged in the same or broadly similar work having regard, where relevant, to
whether they have a similar level of qualification, skills and experience’? The Employment Tribunal and the Employment
Appeal Tribunal ([2003] IRLR 732, [2004] ICR 257) answered both questions in
the negative. The Court of Appeal
([2004] EWCA Civ 844, [2004] 3 All ER 620, [2005] ICR 84) answered the first
question in the positive, but the second in the negative. The firefighters, supported by their union,
appeal to this House and both questions are in issue.
THE 2000 REGULATIONS
[24] The 2000 regulations were made under s 19
of the Employment Relations Act 1999, which required the Secretary of State to
make regulations for the purpose of securing that people in part-time
employment were treated no less favourably than people in full-time
employment. Without prejudice to that
general objective, the 2000 regulations were also to comply with the United
Kingdom’s obligations under Council Directive (EC) 97/81, which required member
states to implement the annexed Framework Agreement on part-time work. The flavour of the directive is summed up in
Recital (5):
‘Whereas the conclusions
of the Essen European Council stressed the need to take measures to promote
employment and equal opportunities for women and men, and called for measures
with a view to increasing the employment-intensiveness of growth, in particular
by a more flexible
179
organisation of work in
a way which fulfils both the wishes of employees and the requirements of
competition …’
In other words, more flexible employment practices can be
good both for employees and for business.
General consideration 5 preceding the Framework Agreement emphasises the
point:
‘Whereas the parties to
this agreement attach importance to measures which would facilitate access to
part-time work for men and women in order to prepare for retirement, reconcile
professional and family life, and take up education and training opportunities
to improve their skills and career opportunities for the mutual benefit of
employers and workers and in a manner which would assist the development of
enterprises …’
The object, clearly, was to encourage more flexible
working patterns but not at the cost, either of proper protection for the
workers or of competitiveness for the employer.
[25] Clause 4.1 of the Framework Agreement
provides for the principle of non-discrimination:
‘In respect of
employment conditions, part-time workers shall not be treated in a less
favourable manner than comparable full-time workers solely because they work
part time unless different treatment is justified on objective grounds.’
This is reflected in reg 5(1) and (2) of the 2000
regulations:
‘5(1) A part-time worker
has the right not to be treated by his employer less favourably than the
employer treats a comparable full-time worker—(a) as regards the terms of his
contract; or (b) by being subjected to any other detriment by any act, or
deliberate failure to act, of his employer.
(2) The right conferred
by paragraph (1) applies only if—(a) the treatment is on the ground that the
worker is a part-time worker, and (b) the treatment is not justified on
objective grounds.’
[26] Clause 3.2 of the Framework Agreement
defines a ‘comparable full-time worker’:
‘The term “comparable
full-time worker” means a full-time worker in the same establishment having the
same type of employment contract or relationship, who is engaged in the same or
a similar work/occupation, due regard being given to other considerations which
may include seniority and qualification/skills.’
This is reflected in reg 2(4) of the 2000 regulations:
‘A full-time worker is a
comparable full-time worker in relation to a part-time worker if, at the time
when the treatment that is alleged to be less favourable to the part-time
worker takes place—(a) both workers are—(i) employed by the same employer under
the same type of contract, and (ii) engaged in the same or broadly similar work
having regard, where relevant, to whether they have a similar level of
qualification, skills and experience …’
[27] Regulation 2(1) defines a full-time
worker:
180
‘A worker is a full-time
worker for the purpose of these Regulations if he is paid wholly or in part by
reference to the time he works and, having regard to the custom and practice of
the employer in relation to workers employed by the worker’s employer under the
same type of contract, is identifiable as a full-time worker.’
Regulation 2(2) defines a part-time worker:
‘A worker is a part-time
worker for the purpose of these Regulations if he is paid wholly or in part by
reference to the time he works and, having regard to the custom and practice of
the employer in relation to workers employed by the worker’s employer under the
same type of contract, is not identifiable as a full-time worker.’
[28] Regulation 2(3) is the most relevant to
the issue of ‘same type of contract’ under reg 2(4)(a). At the relevant time it read thus:
‘For the purposes of
paragraphs (1), (2) and (4), the following shall be regarded as being employed
under different types of contract—(a) employees employed under a contract that
is neither for a fixed term nor a contract of apprenticeship; (b) employees
employed under a contract for a fixed term that is not a contract of
apprenticeship; (c) employees employed under a contract of apprenticeship; (d)
workers who are neither employees nor employed under a contract for a fixed
term; (e) workers who are not employees but are employed under a contract for a
fixed term; (f) any other description of worker that it is reasonable for the
employer to treat differently from other workers on the ground that workers of
that description have a different type of contract.’
Finally, it should be noted that, under reg 1, a ‘worker’
means both an ‘employee’, an individual who has entered into, works or worked
under a contract of employment, and an individual who has entered into, works
or worked under—
‘any other contract …
whereby the individual undertakes to do or perform personally any work or
services for another party to the contract whose status is not by virtue of the
contract that of a client or customer of any profession or business undertaking
carried on by the individual.’
THE SAME TYPE OF CONTRACT?
[29] As the whole purpose of the 2000
regulations is to prohibit unjustified discrimination in the terms and
conditions of employment, this threshold requirement is clearly looking for
comparable types of employment relationship rather than for comparable terms
and conditions of employment. As the
Employment Tribunal put it (at [132]):
‘It is self evident …
that a “part-time contract” is probably almost certainly “a different” contract
from a whole-time contract. Our problem
was how to assess and identify the existence of “a different type of
contract” (our emphasis).’
[30] The appellants argue that each item in
the list in reg 2(3) is exclusive of the others. Once the relationship falls within one
paragraph it cannot fall within another.
Here both retained and whole-time firefighters fall within para (a):
they are ‘employees employed under a contract that is neither for a fixed term
nor a
181
contract of apprenticeship’. Paragraph (f) was a residual category,
included by the draftsman out of an abundance of caution, in case there was
some type of employment relationship not covered by paras (a)–(e), although no
convincing example has yet been imagined.
[31] The respondents argue that para (f) can
take a relationship which would otherwise fall within one of the earlier
paragraphs into a different category.
The Employment Tribunal considered (see [145]) that the—
‘literal meaning of the
words … is that we should look at the elements of the contract which persuade
us that it is taken altogether a “different type of contract” and then decide
whether it is reasonable for the employer to have employees on such a
contract.’
A problem which affects both approaches to the
construction of para (f) is that it is premised on there being a ‘different
type of contract’ from the others listed but then only applies if it is
reasonable for an employer to treat the worker differently for that
reason. This leaves the tribunal with
nowhere to go if it has determined that it is a different type of contract but
then that it is not reasonable to treat the worker differently on that account.
[32] The tribunal referred (at [75]) to the
‘high degree of commonality’ between the contractual terms and conditions of
both retained and whole-time firefighters.
They share the same ranking structure, although the retained
firefighters cannot progress beyond the rank of Sub Officer. They are subject to the same strict
discipline. They are covered by the same
legislation. Their job descriptions are
identical until they get to item 6 (of which more at [39], below).
[33] However, the retained firefighters have
different working patterns from the whole-timers. The whole-timers work a ‘very structured
shift system of 42 hours per week with overtime’ (see [28]). The part-timers commit themselves to regular
weekly attendance, of two to three hours, for training and drill. They also commit themselves to being on call
for a set number of hours per week, varying from 84 to 156 hours. They are required to be able to attend at the
fire station within five minutes of being called out. The tribunal found (at [31]) that the ‘part
of the retained fire fighters’ job role which is … virtually unique in our
experience is the ad hoc demand-led nature of the role of attending call outs
to emergency situations’, although they thought that the coastguard and
lifeboat services might be comparable.
The different working patterns are also reflected in different packages
of pay. The whole-timers have a
conventional salary with overtime structure.
The part-timers have a more complicated arrangement, including three
main features: an initial ‘retaining fee’, payment for their regular routine
working, and payments for being called out.
The tribunal concluded (at [142]) that ‘because of the many differences
… and the many special features of the working patterns as set out above, the
applicants are indeed employed under a different type of contract’. They also found that there were good reasons
for these differences and that it was reasonable for the employer to treat the
employees differently on the ground that they had a different type of contract
(see [143]).
[34] The Court of Appeal, however, accepted
the appellants’ argument on the construction of reg 2(3) (see [2004] 3 All ER
620, [2005] ICR 84). In my opinion they
were correct to do so. Regulation
2(3)(f) cannot be designed to allow employers to single out particular kinds of
part-time working arrangements and treat them differently from the rest. The list in reg 2(3) is clearly designed to
define different categories of working relationship, within which part-time and
182
full-time workers are to be regarded as comparable
but between which they are not. Each
category therefore contemplates the possibility of both full-time and part-time
workers in that category. Thus the
categories are designed to be mutually exclusive. It is accepted by all that categories (a)–(e)
are indeed exclusive. But the
respondents argue that category (f) is different.
[35] I have difficulty accepting that argument
because of the way para (f) is drafted.
It is drafted in the same way as paras (a)–(e), as the final item in a
list of items. If it were indeed
intended as an exception to any of the earlier categories, the draftsman would
more naturally have included a proviso rather than an additional subparagraph,
perhaps along the following lines:
‘provided that a
description of worker falling within one of the above paragraphs shall be
regarded as employed under a different type of contract if it is reasonable for
the employer to treat that description of worker differently from other workers
on the ground that workers of that description have a different type of
contract.’
Instead, para (f) expressly refers to ‘any other
description of worker’ which in any ordinary use of language means ‘any
description of worker other than those described in the preceding paragraphs’.
[36] These purely linguistic considerations
are reinforced by the purpose of the regulation. It is there only to provide a threshold to
require the comparison between full- and part-time workers to take place. Regulation 5 then provides, as we shall see,
for a sensible appreciation of what is and is not less favourable treatment. It also allows for differences in treatment
to be objectively justified. Part-time
employment is inevitably different from full-time employment in a number of
ways, yet the purpose of the 2000 regulations is to secure that it is treated
equitably. If the threshold of
comparability is set too high this can only apply in the most straightforward
of situations, for example, where full-timer and part-timer work in exactly the
same way but one for, say, 40 hours a week and the other for, say, 20 hours a
week. Yet the watchword of the Framework
Directive was flexibility in meeting the needs of both employers and
workers. Particular workplaces may wish
to arrange the pattern of part-time working differently from that of full-time
working to suit their particular needs.
There is nothing unusual in employing people who are called upon as and
when needed. A good example is the
judicial system, which in England and Wales makes substantial use of part-time
workers who are remunerated on a daily, fee-paid basis. Rather like the retained firefighters, these
part-timers commit themselves to attending a minimum amount of training when
required to do so and to undertaking a minimum amount of judicial sitting when
invited to do so. The draftsman clearly
foresaw that these part-time members of the judiciary would otherwise fall
within the 2000 regulations because he expressly excluded them by reg 17.
[37] I am not unduly troubled by the fact that
no one has yet thought of a convincing example of an ‘other description of
worker’ who might fall within sub-para (f).
This is largely because of the exclusionary way in which the other
subparagraphs are drafted. But it is not
at all uncommon for a draftsman prudently to add a residual category just in
case. Nor am I unduly troubled by the
decision of the European Court of Justice in Wippel v Peek & Cloppenburg
GmbH & Co KG Case C-313/02 [2005] IRLR 211, [2005] ICR 1604. The claim in that case, to be paid on the
basis of the maximum number of hours the worker could have been asked to work,
when she was under no obligation to do any work at all, was
183
clearly outrageous.
It is not surprising that the court found that her ‘work when asked and
if you please’ arrangement was not the same type of relationship as those with
whom she wished to be compared.
Furthermore, the European Court of Justice was concerned with an
‘employment … relationship’ under cl 3.2 of the Framework Agreement, whereas we
are concerned with the express words of the 2000 regulations. The 2000 regulations should be read as going
at least as far as the Framework Agreement goes. But it is open to them to go further, as is
clear from the broader regulation-making power contained in s 19 of the 1999
Act.
[38] For these reasons, essentially the same
as those given by Maurice Kay LJ in the Court of Appeal ([2004] 3 All ER 620, [2005]
ICR 84), I would hold that retained and whole-time firefighters are employed
under the same type of contract for the purpose of reg 2(4)(a).
THE SAME OR BROADLY SIMILAR WORK?
[39] The ‘main purpose of the job’ of both
retained and whole-time firefighters in the Kent Fire Brigade is:
‘1. To save life.
2. To protect property
from fire and the effects of fire.
3. To render
humanitarian [and special] services.
4. To assist in
safeguarding the environment.
5. Assist in “Making
Kent Safer” by advising and educating the general public and participating in
locally organised events.’
The first five items in their ‘main duties and
responsibilities’ are also the same:
‘1. Respond immediately
to all emergency calls.
2. Regularly check, test
and maintain all fire appliance and station equipment, thereby ensuring its
readiness for use.
3. Regularly attend and
participate in practical drills, exercises, lectures and other forms of
training ensuring that a high personal standard of practical and technical
expertise is maintained.
4. Operate as an
effective team member at all times and maintain the high level of fitness
necessary.
5. Acquire and maintain
a good knowledge of special risks, potential hazards, water supplies and fixed
installations within the Fire Station area.’
Thereafter, item 6 of the retained firefighter’s list says
only that they must ‘Carry out any other duties as directed by supervisory
officers’. Whole-time firefighters have
these three items:
‘6. Assist with the fire
safety workload of the Brigade by becoming familiar with the relevant
legislation and carrying out routine inspections and visits, provide advice for
other organisations and the general public.
7. Comply with
responsibilities in accordance with the Health and Safety at Work Act and the
Fire Authority’s Health and Safety Framework to ensure own safety and that of
other employees and persons who may be affected by their work.
8. Promote and support
the principles of fairness at all times in accordance with the Fire Authority’s
Policy Statement on Fairness at Work and other Brigade Fairness at Work
policies and relevant legislation.’
[40] In practice, the tribunal found (at [7])
that ‘at the scene of the fire the actual job function carried out by all
attending is effectively the same’. The
184
retained and whole-time firefighters were
indistinguishable from one another. The
first most senior firefighter at the scene assumes and remains in control. The main difference was that while the
retained firefighters spent a high proportion of their time responding to
emergencies, the proportion of the working week spent on this by whole-timers
was much lower. Accordingly, the
whole-timers spent much more of their time on ‘non-occurrence duties’, community
fire safety work, such as home fire risk assessments, advising on installation
of home fire detectors, attending local events and giving demonstrations. Although retained firefighters could do this
sort of work, in practice they were never, or hardly ever, called upon to do
so. They were not qualified to issue
fire certificates. Hence the tribunal
concluded (at [152]) that ‘there are measurable additional job functions which
are carried out by the whole-time firefighter … and on that ground alone we
would find that it is a fuller wider job than that of the retained
firefighter’. They also found (at [153])
that because of differing entry standards, probationary standards, probationary
training and ongoing training, ‘there are material differences in the “level of
qualification and skills”’ between retained and whole-time firefighters. Putting together the ‘fuller wider role’ and
the ‘higher level of qualification and skills’ they concluded (at [154]) that
the two were not ‘engaged in the same or broadly similar work having regard,
where relevant, to whether they have a similar level of qualification, skills
and experience’ for the purpose of reg 2(4)(a)(ii).
[41] The respondents argue that this was
pre-eminently a question of fact for the industrial jury to resolve on the
basis of all the evidence before them.
The tribunal heard a great deal of evidence and deliberated over it for
no less than five days. Their extended
reasons were detailed and closely reasoned.
It is not for an appellate court to second guess their assessment. The appellants do not point to any clear
error of law in the tribunal’s reasoning, nor do they argue that the conclusion
was perverse. They do, however, draw
attention to the difference in wording between reg 2(4)(a)(ii), which requires
only that the work be ‘the same or broadly similar’, and its nearest equivalent
in s 1(4) of the Equal Pay Act 1970:
‘A woman is to be
regarded as employed on like work with men if, but only if, her work and theirs
is of the same or a broadly similar nature, and the differences (if any)
between the things she does and the things they do are not of practical
importance in relation to terms and conditions of employment …’
[42] This test is employed in the context of a
scheme which imposes an equality clause upon the contracts of employment of
women who are employed on like work with men.
It is not a threshold condition which is the precursor to considering
whether there is less favourable treatment which cannot objectively be
justified. The equality clause operates
unless, under s 1(4), there is a difference between the things she does and the
things he does which is of practical importance in relation to their terms and
conditions of employment, or, under s 1(3), the variation between their
contracts is genuinely due to a material factor which is not the difference of
sex. Unsurprisingly, there are
indications that the tribunal saw their task under the 2000 regulations, which
was new to them then, as essentially similar to that called for under the 1970
Act. Thus they assessed the various
similarities and differences between the two types of firefighters as having
‘high’, ‘medium’ or ‘low’ importance.
They used the term ‘material differences’, which is an important concept
in sex and race discrimination but not in the 2000 regulations (see
[153]). They also referred (at [155]) to
a
185
‘long-established proposition in an inquiry of this
kind’ when discussing the equal pay case of Angestelltenbetriebsrat der
Wiener Gebietskrankenkasse v Wiener Gebietskrankenkasse Case C-309/97 [1999]
IRLR 804, [1999] ECR I-2865. Thus,
although they directed themselves (at [150]) that the regulations test did not
contain the 1970 Act reference to differences of practical importance, they did
not, after pointing out the differences (at [152] and [153]), come back to the
‘same or broadly similar’ test when reaching their conclusions. Instead, they reverted to the language of
comparability and in doing so failed to evaluate the differences against the
similarities.
[43] However, while there are similarities
between the two types of comparison, they are not the same. The sole question for the tribunal at this
stage of the inquiry is whether the work on which the full-time and part-time
workers are engaged is ‘the same or broadly similar’. I do not accept the appellants’ argument, put
at its highest, that this involves looking at the similarities and ignoring any
differences. The work which they do must
be looked at as a whole, taking into account both similarities and
differences. But the question is not
whether it is different but whether it is the same or broadly similar. That question has also to be approached in
the context of regulations which are inviting a comparison between two types of
worker whose work will almost inevitably be different to some extent.
[44] In making that assessment, the extent to
which the work that they do is exactly the same must be of great
importance. If a large component of
their work is exactly the same, the question is whether any differences are of
such importance as to prevent their work being regarded overall as ‘the same or
broadly similar’. It is easy to imagine
workplaces where both full- and part-timers do the same work, but the
full-timers have extra activities with which to fill their time. This should not prevent their work being
regarded as the same or broadly similar overall. Also of great importance in this assessment
is the importance of the same work which they do to the work of the enterprise
as a whole. It is easy to imagine
workplaces where the full-timers do the more important work and the part-timers
are brought in to do the more peripheral tasks: the fact that they both do some
of the same work would not mean that their work was the same or broadly
similar. It is equally easy to imagine
workplaces where the full-timers and part-timers spend much of their time on
the core activity of the enterprise: judging in the courts or
complaints-handling in an ombudsman’s office spring to mind. The fact that the full-timers do some extra
tasks would not prevent their work being the same or broadly similar. In other words, in answering that question
particular weight should be given to the extent to which their work is in fact
the same and to the importance of that work to the enterprise as a whole. Otherwise one runs the risk of giving too
much weight to differences which are the almost inevitable result of one worker
working full-time and another working less than full-time.
[45] In my view, looking at the extended
reasons of the tribunal as a whole, it is difficult to escape the conclusion
that they saw themselves as conducting essentially the same exercise as that
required by the 1970 Act. They
acknowledged that the firefighters’ work at the fireground was the same and
said that they gave that factor high importance. But they failed to acknowledge the centrality
of that work to the enterprise of the Fire Brigade as a whole. That centrality is demonstrated by the fact
that in large areas of the country cover is provided only by retained
firefighters. Nor did the tribunal
suggest that there was any qualitative difference in the work done by both at
the fireground. Special
186
qualifications, which retained firefighters do not
have, are needed to operate certain specialist equipment, but not all whole-time
firefighters have those qualifications either.
The tribunal’s reliance upon the higher qualification and skills of the
whole-time firefighters was in connection with the further activities which
they were called upon to carry out (see [155]).
[46] There is a further factor which cannot be
ignored, at least in a test case concerning a very large nationwide
workforce. This is the extent to which
the job description and terms of the part-timer’s contract means that he can in
fact be required to engage in the same range of tasks as the full-timer, even
if in practice he is only rarely called upon to do them. There are likely to be variations in practice
across the country, with some places showing greater flexibility in their
deployment of their part-timers than others.
There are also likely to be variations over time. The recent Audit Commission Report (Comprehensive
Performance Assessment: Learning from CPA for the Fire and Rescue
Service in England 2005 (January 2006)) praises those fire authorities
which are making more flexible use of their retained firefighting force. It also comments that their lack of
involvement in community fire safety work is unlikely to be sustainable in the
long term. If more authorities take up
the recommendation of the Audit Commission that ‘[t]he lack of inclusion of
retained firefighters in community fire safety work is reducing the capacity of
fire and rescue authorities to deliver local and national objectives’ (see p 39
(para 87)) the conclusion that they are not engaged in the same or broadly
similar work as the whole-timers is also unlikely to be sustainable in the long
term. The tribunal are, of course,
judging the case put before them on the evidence put before them as to the
present facts. But the requirements
which may and sometimes are placed upon the part-time workers are part of that
picture.
[47] For these reasons I would remit the case
to the tribunal for reconsideration of whether the retained and whole-time
firefighters are engaged in the same or broadly similar work.
LESS FAVOURABLE TREATMENT?
[48] There is a subsidiary question, which
only arises if the retained firefighters cross both planks in the threshold, of
the proper approach to assessing less favourable treatment under reg 5. The appellants assert that both ‘less
favourable treatment’ and objective justification have to be considered term by
term. The respondents assert that both
should be looked at overall. More favourable
elements in the package can be set against the less favourable elements in
assessing whether overall it is less favourable to the part-timers. Less favourable elements may be justified by
more favourable elements elsewhere.
[49] I would not wish to rule out the
possibility that, in certain cases, a less favourable term might be so well
balanced by a more favourable one that it could not be said that the
part-timers were treated less favourably overall. Nor would I wish to rule out the possibility
that more favourable treatment on one point might supply justification for less
favourable treatment on another. But in
this case, even supposing it were to go back before a tribunal, the question is
unlikely to arise. The differences
complained of are three: a different way of calculating sick pay which the
tribunal found to be less favourable (see [116]); a lower hourly rate for
additional duties (see [119]); but above all, the exclusion of retained
firefighters from the pension scheme, which again the tribunal found would be
less favourable treatment, at least in some cases (see [110]). The tribunal found it difficult to see any
objective justification for these differences, and in their
187
concluding remarks gave some encouragement to the
industry to devise a simple pension scheme and a more equitable sick pay
scheme. Although it would be open to a
tribunal hearing the case on remission to reach a different conclusion on
consideration of the overall package, it is difficult at this stage to see how
the differently structured pay package could justify total exclusion from the
pension scheme or a sick pay scheme which is unrelated to the hours actually
worked.
[50] For those reasons, and those given by my
noble and learned friend, Lord Hope of Craighead, with which I agree, I would
allow this appeal and remit the case to the Employment Tribunal for
reconsideration of the ‘same or broadly similar work’ issue and any further
issues which arise as a result of their conclusion on that.
LORD CARSWELL.
[51] My Lords, a large amount of the
firefighting work in the United Kingdom is carried out by retained
firefighters, who serve part-time at firefighting duties, their main employment
being as a rule in other occupations.
The Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000, SI 2000/1551 were passed, in compliance with the terms of the
Framework Agreement annexed to Council Directive (EC) 97/81, in order to
protect the position of part-time workers, recognising the growing prevalence
of part-time working and the need to protect them from exploitation. In these proceedings the appellants, who are
all retained firefighters, seek to obtain the benefit of the 2000 regulations,
complaining that they have unlawfully been discriminated against by comparison
with full-time firefighters in relation to their conditions of employment.
[52] The two main issues in the appeal before
the House are whether each of the two limbs of reg 2(4)(a) of the 2000
regulations is satisfied. Regulation
2(4), so far as material, provides:
‘A full-time worker is a
comparable full-time worker in relation to a part-time worker if, at the time
when the treatment that is alleged to be less favourable to the part-time
worker takes place—(a) both workers are—(i) employed by the same employer under
the same type of contract, and (ii) engaged in the same or broadly similar work
having regard, where relevant, to whether they have a similar level of
qualification, skills and experience …’
[53] On the first issue I would uphold the
decision of the Court of Appeal [2004] EWCA Civ 844, [2004] 3 All ER 620,
[2005] ICR 84, for the reasons given by my noble and learned friend Lord Hope
of Craighead, that the retained firefighters are employed by the same employer
under the same contract. I agree with
him that the categories in reg 2(3) are mutually exclusive. Since the retained firefighters and the
full-time firefighters are both governed by reg 2(3)(b), each being employed
under a contract that is neither for a fixed term nor a contract of
apprenticeship, cadit quaestio and one need look no further.
[54] The second of the two main issues in the
appeal, on which I propose to concentrate, is whether the decision of the
Employment Tribunal on the application of reg 2(4)(a)(ii) can be upheld. On that issue I regret that I do not find it
possible to agree with the majority of the Committee. The Employment Tribunal, after examining and
setting out the evidence with commendable care and thoroughness, concluded that
the retained firefighters and the full-time firefighters were not engaged in
the same or broadly similar work. It was
188
contended on behalf of the appellants that the
tribunal erred in their approach to the construction of these provisions and
that on the facts found they could only properly have reached the opposite
conclusion. In other words, they
committed an error or errors of law in that, first, they took incorrect matters
into account or failed to take into account factors to which they should have
had regard and, second, their conclusion was in the legal sense perverse. In assessing the validity of these
submissions it is necessary to look in some detail at the findings of fact made
by the tribunal and the decision based on them.
[55] At the outset of the written decision the
tribunal set out (at [5]) their approach to the evidence and issues, stating in
conclusion:
‘For the purposes of
this decision we set out our reasons and conclusions we hope in a logical
fashion but we would not wish it to be thought that we did not stand back and
look at the whole picture simply because we record a number of our conclusions
sequentially.’
At [19] the tribunal said:
‘When we reach our
conclusions in our overall final conclusions in the case we directed ourselves
that we should wherever possible seek to establish any similarities/differences
in job function from either a qualitative point of view or a quantitative point
of view and then evaluate mainly the qualitative differential.’
Again, the tribunal emphasised (at [74]) that in comparing
the contractual terms of the retained and full-time firefighters it was
concerned to look at ‘the whole job’ of each.
[56] The tribunal commenced their examination
of the material facts by describing (at [7]) the fireground in terms which were
of central importance:
‘Starting at the
beginning it is self evident that an important function of the job role of the
whole-time firefighter and the retained firefighter is the fighting of
fires. There was a substantial agreement
on the evidence before us that at the scene of the fire the actual job function
carried out by all attending is effectively the same. It was accepted by the respondents’ counsel
and witnesses that if the first fire appliance at the scene is operated or
commanded by a retained firefighter the first most senior firefighter at the
scene whether whole-time or retained remains in command at the scene of the
fire. It was accepted that to the
Clapham Omnibus bystander or the anxious householder the firefighters at the
scene would be indistinguishable in their appearance, uniform, activity or any
other outward sign (save for an initial attached to the uniform which
designates special qualification in a particular type of equipment).’
They examined the work done and the machinery and
equipment operated by the retained and full-time firefighters respectively,
then went on to state (at [11]):
‘We find generally that
on the evidence of the applicants before us looking at an average year the
overall picture is that the retained firefighters’ working week contains a
“high” proportion as opposed to “medium” or “low” of call out and attendance at
incidents in comparison with the retained firefighters’ other duties. We accept that there may well be many dozens
of retained firefighters who do not, as a matter of fact, often get called on
call-outs and attendances. But we also
find that looking at the earnings of some of the
189
applicants who for
example earn more than, say, £10,000 pa that it is obvious that the proportion
of their working life spent on call-outs and attendances is properly to be
described as “very high”.’
They expressed (at [14]) their conclusion on this part of
the evidence in the following terms:
‘we should stress that
the similarity in job function and job role and work carried out by retained
firefighters on the fireground is clearly the strongest point in the
applicants’ case and in our own evaluation of the similarities/dissimilarities
argued for and against on each side we have no hesitation in attaching to that
similarity a label of “high” importance as opposed to “medium” or “low”.’
[57] The tribunal then examined
‘non-occurrence duties’, that is to say, those other than attendance at fires,
accidents and emergencies. They held
that the full-time firefighters had generally on average very much longer
working hours. They expressed their view
(at [18]) in broad terms on comparison of job function:
‘… We accept that as a
matter of individual competence it is certainly possible that an experienced
retained firefighter is capable of carrying out a home fire risk assessment and
making recommendations. In a general way
we do not doubt that the vast majority of retained firefighters are perfectly
capable of advising about the need for and the mechanics of the installation of
a home fire detector.’
They stated (at [20]) their view about the community work
carried out as follows:
‘As to the community
work carried out by the two branches of the service it is, we find, obvious
that whether expressed as a total number of hours per week or per year or for
that matter whether expressed as a proportion of the relevant firefighter’s
time whole-time firefighters plainly carry out quantitatively a great deal more
of the duties under this heading than their retained colleagues. We find nevertheless that this is not simply
a question of having more hours available to do that kind of work (which of
course is the obvious consequence of being “full-time” rather than
“part-time”). We find that there are a
variety of ways in which the whole-time firefighter has a much more specialised
body of knowledge and experience which can be brought to bear in carrying out
these duties than is available to and applied by retained firefighters.’
They pointed out that retained firefighters are not
qualified or entitled to issue fire certificates, concluding (at [22]):
‘The retained
firefighters are simply not qualified to carry out this role and do not do
so. On a lesser but related level
retained firefighters are not in fact used to carry out risk assessments for
the assessment of risk of fire in the home.
On this area therefore we conclude that whilst there is an element of
the differential which is purely quantitative nevertheless we find that there
are critical parts of the differential which flow directly from the whole-time
firefighters’ “extra” training and qualification and experience. There is additionally therefore a qualitative
difference which in our general approach to these various issues we would rate
in this case as “high”.’
190
[58] The tribunal examined the hours of work
of each group, but did not place much emphasis on any differences which
existed, stating (at [42]):
‘Assessing the
differential between the “hours at work” of the retained firefighter in
comparison with whole-time we assess the lower number of the hours as
immaterial (part-time working being the central matter of the regulations) and
the significance of the “demand-led unpredictability” of the hours as “low”.’
[59] The tribunal looked at recruitment, with
particular reference to the Kent and Berkshire areas, which were the subject of
the detailed evidence furnished to them.
They did not rate the difference between the physical selection tests
applied to each group as being of more than ‘low’ significance. On the other hand, the examination-type
element in the selection process was much more thorough and detailed, covering
all the aptitudes which the full role of the whole-time firefighter
requires. They judged (at [52]) that
there was an overall qualitative difference in the standard of written tests
taken, the standard of the full-time firefighters’ tests being much more wide
ranging, detailed and demanding. They
concluded (at [53]): ‘… This is a differential which were we carrying out a
simple ‘Equal Value’ sort of investigation we would consider to be a
significant or ‘high’ qualitative difference.’
[60] When considering the question of
comparisons between the groups in respect of training, qualifications and
experience, the tribunal accepted (at [54]) that the provision made was
changing significantly, with a large number of proposals on the stocks for
developing core competencies and development plans for retained
firefighters. They took the view (at
[55]), however, that they were bound to reach their conclusions on the basis of
the ‘state of play’ at the time of the originating applications and not by
‘looking towards some future date when and if there is more extensive training
of the retained firefighters’. The
validity of this approach was not challenged by the appellants in argument and
I consider that it was correct. The conclusion
reached by the tribunal on this question was set out at [57]:
‘Similar evidence as to
the training position in the Kent Authority is given by Mr Peter Stanley, the
Central Training and Recruitment Manager in Maidstone. At paras 10 onwards of his witness statement
(p 148) he sets out the main modules covered by that training course and he
uses the word “exam” for the passing of modules at four-, eight- and
twelve-week points throughout that training course.’
[61] The tribunal examined the question of
promotion, again by reference to the Kent and Berkshire areas, and concluded
(at [71]):
‘… The general picture,
however, in both regions is that the hurdles which must be jumped by the
retained firefighter for promotion are by no means as demanding as those which
are uniformly and firmly in place for their whole-time counterparts. The differential in this case in this area of
our comparison exercise we find again to be marked at “high” and it is a
differential which reflects in our judgment again qualitative differences
between the two branches of the service and the ceiling at Sub Officer is a
symptom of this whole approach.’
[62] They then turned to the comparison of the
contractual terms of the groups, observing (at [78]) that they would not wish
it to be thought that by
191
concentrating on the differences they ignored the
‘vast commonality’ which patently did exist.
They examined a number of features, expressing the view (at [84]) that
the situation of the retained firefighter was ‘highly individual because there
is a combination of different types of “work” which have to be legitimately
reflected in the complex mechanism of payment which has evolved over the
years’. They examined the several
elements of the retained firefighters’ pay package, pointing to a number of
features which were highly unusual.
After looking at bounty payments they concluded (at [100]):
‘Putting all these
aspects of the work done/pay received equation together our overall conclusion
must be we find that although in detailed respects there are a number of
similarities with a number of other “casual” “occasional” “on call” types of
job role/occupation the whole picture together looked at in the round is that
the retained firefighter is a very special case.’
They then considered three areas in which the appellants
complain that they have been treated less favourably: entitlement to pensions,
sick pay and increased pay for additional responsibilities. On each of these the tribunal accepted that
there was less favourable treatment of the retained firefighters.
[63] The tribunal set out their views on the
issue whether both types of workers were engaged in the same or broadly similar
work:
‘[152] In reaching our
conclusion as to whether the retained firefighter applicants are rightly to be
held as “engaged in the same or broadly similar work” we would have regard
again to many of our main conclusions of fact about the particular methods of
working of the retained firefighter service and to the conclusions of fact
which we have reached about the way the whole operation has been geared to
focus the working duties of the retained firefighter substantially on the
emergency call-out firefighting role.
That central firefighting role was not in dispute before us as being the
central and most important job function of the retained firefighter and being
certainly a major part of the job role of the whole-time firefighter. We have accepted above however that there are
measurable additional job functions which are carried out by the whole-time
firefighter (and in the main we accept Mr Bowers’ submissions on these issues)
and on that ground alone we would find that it is a fuller wider job than that
of the retained firefighter.
[153] Additionally we
find that because of entry standards, probationary standards, probationary
training and ongoing training in the main areas which we have set out in
foregoing paragraphs, again there are material differences in the “level of
qualification and skills” between the retained firefighter and the whole-time
comparator. Whilst we were not called
upon to make the comparison there is obviously simply no comparison between
retained ranks above Station Officer since promotion is not permitted
(depending on the region) above that level.
We exclude from this part of our assessment the question of “experience”
because we fully take on board and accept the applicants’ case that retained
firefighters, particularly those who put in a large number of part-time hours,
can develop an impressive level of experience.
[154] Putting together
however the fuller wider role and the higher level of qualification and skills
which we find to be the inevitable inference from the evidence before us, our
conclusion is that were we called upon to
192
consider the case under reg
2(4) the retained firefighter would not establish comparability with his
full-time counterpart under reg 2(4)(a)(ii).’
On the question of comparison of qualifications, skills
and experience they held (at [155]) that there was—
‘a long-established proposition
in an inquiry of this kind namely that a higher level of qualification which,
further, is reflected in a higher level of skills and which, further, in fact
is demonstrated by further activities which the complainant by lack of that
level of qualification skill or training is not qualified to carry out and does
not in fact carry out places the two workers into different non-comparable
situations. If we were called upon
therefore to reach a conclusion under this regulation we would not accept the
applicants’ case.’
[64] The second part of the appellants’
submission on this part of the case can be quickly dispatched. The test, as laid down in such cases as
Edwards (Inspector of Taxes) v Bairstow [1955] 3 All ER 48,
[1956] AC 14, is difficult to satisfy.
As expressed by Lord Radcliffe ([1955] 3 All ER 48 at 57, [1956] AC 14
at 36), for the conclusion of an inferior tribunal to be set aside on this
ground requires a finding that ‘the facts found are such that no person acting
judicially and properly instructed as to the relevant law could have come to
the determination under appeal’. The
same point was made by the Court of Appeal ([2004] 3 All ER 620 at [22], [2005]
ICR 84 per Maurice Kay LJ), citing the remarks of Mummery LJ in Yeboah v
Crofton [2002] EWCA Civ 794 at [93], [2002] IRLR 634 at [93]. In my opinion it cannot be said that the
present case falls into this category.
The facts were fully and conscientiously examined by the tribunal, and
the issues were discussed at length in their written decision, a point made
very well in the decision of the Employment Appeal Tribunal (see [2003] IRLR
732 at [46], [2004] ICR 257). They had
material before them on which they were entitled to come to the conclusion which
they reached, and in my view their decision could not be set aside on this
ground.
[65] One of the submissions advanced by Mr
Allen QC on behalf of the appellants was that the tribunal adopted the wrong
approach to the assessment of the similarity of the work done by retained and
full-time firefighters, in that they focused too much on the differences. At one point he argued that a tribunal should
not consider differences between comparables at the stage when they are
considering reg 2(4), but only when they come to the question whether the employer
can justify the differences under reg 5.
I cannot accept this contention.
In order to make a meaningful comparison of two items and determine the
extent of their similarity one necessarily has to look at those aspects in
which they are like each other and those in which they are different. I am of opinion that the tribunal were quite
correct to look in detail at these matters, so long as they maintained a proper
balance and breadth of vision sufficient to satisfy the test ‘broadly
similar’. The tribunal did acknowledge
carefully at the outset of their examination of the issue the considerable
similarity in respect of the core firefighting work done by each group. They investigated in detail the differences
between the two groups, but they did in my view address the main issue, whether
their work was broadly similar: see, for example, the first sentence of para
[152] of their decision, in which they drew together the arguments and
commenced to express their conclusions.
I consider that there was no error of law in this respect.
193
[66] I revert then to the subject matter of
the first part of the appellants’ submission, whether the tribunal took into
account the correct considerations in approaching the issues on which they
decided the applications. I have already
expressed the view that the tribunal was justified in looking at the
differences between the work done by the respective groups, but it has been
suggested, first, that they failed to recognise the importance of the common
core work of firefighting and rescues and became diverted from proper
consideration of the issue by dwelling too much on the differences—put shortly,
that they did not see the wood for the trees, the submission made on behalf of
the appellants in the Court of Appeal (see [2004] 3 All ER 620 at [15], [2005]
ICR 84 per Maurice Kay LJ). Secondly,
the tribunal directed its attention only to the work done in the mainly urban
south of England, in particular in the counties of Kent and Berkshire, and did
not take into account the large tracts of country in more remote rural areas in
which the fire stations are staffed solely by retained firefighters, who must
have to carry out many of the tasks performed in Kent and Berkshire by
full-time firefighters. Thirdly, it
might be suggested that they did not pay any or sufficient attention to the
increasing flexibility applied by the Fire Service to the division of work
between retained and full-time firefighters.
Fourthly, the view has been expressed by Lord Hope that the reasoning of
the tribunal on the differences in the level of qualification, skills and
experience between the two types of worker amounted to a misdirection.
[67] The first point has a degree of
attractiveness, as a robust way to reverse the decision of a tribunal or lower
court where one disagrees with the balance of that decision. It is necessary, however, for an appellate
court to be cautious about adopting this approach, for it may on proper
examination turn out that it has the effect of evading the application of the
strict test enshrined in Edwards (Inspector of Taxes) v
Bairstow [1955] 3 All ER 48, [1956] AC 14, to which I have
referred. In the present case I do not
consider that there is any room for adopting the approach. If the tribunal had material on which they
were entitled to reach their conclusion, as they manifestly had, and that
conclusion was within the parameters of those to which a reasonable tribunal
properly instructed could come, then it must stand. The tribunal examined the evidence with very
great care and were clearly aware of the importance of the common function of
the two groups of firefighters in their core work of firefighting and
rescue. As I have already stated, I do
not think that their conclusion can be upset as perverse. Once that has been established, I do not
consider that there is any room in this case for questioning its validity on
the suggested ground that their approach dwelt too much on the differences and
not enough on the similarities.
[68] The applications to the Employment
Tribunal were regarded as test cases brought on behalf of the whole group of
approximately 12,000 retained firefighters throughout the country. In the course of the argument before your
Lordships it emerged that there may be significant differences between the
staffing and duties carried out by retained firefighters in remote rural areas
and the pattern in Kent and Berkshire, where the claimants are stationed. For example, it appears from p 35 of the
Audit Commission’s published document Comprehensive Performance Assessment:
Learning from CPA for the Fire and Rescue Service in England 2005 (January
2006) (which did not become available until after the conclusion of the hearing
of the appeal) that in Devon 46 out of 58 stations, or almost 80%, are crewed
by retained duty system staff. I think
it most likely that evidence of the position in many areas in rural parts of
Great Britain, especially the more remote places, would show a similar pattern. Indeed, it was accepted
194
by the first respondents in their closing outline
submissions to the tribunal that practice in other stations and forces would
differ markedly. But the tribunal could
make their findings only on the evidence adduced before them, and they would
not have been justified in reaching conclusions by resort to factual material
outside that. By the same token, I do
not consider that this House as an appellate tribunal would be justified in
resorting proprio motu to material, even though it is in the public
domain, which was not before the tribunal and on which they did not base their
findings. I do not wish to speculate
whether other cases might be brought by other retained firefighters on
different facts. On the case as
presented to the tribunal, I do not consider that they were in error in
deciding it on the material before it.
[69] The same may be said of the suggestion
that the tribunal did not pay proper attention to the increasing amount of
flexibility now being adopted by fire authorities in the employment of retained
firefighters and the duties assigned to them (see eg the Audit Commission
document, p 39). This does not appear to
have been the subject of evidence or argument before the tribunal, and they can
hardly be faulted for failing to take that factor into account in their
decision. In considering a similar
submission made to them about training, the tribunal correctly, as I have held
(at [57], above), declined to take into account current developments which were
proposed but had not been put into effect at the date of the originating
applications.
[70] Finally, I am unable to agree that the
tribunal misdirected themselves in respect of qualification, skills and
experience. In my opinion the reference
to these in reg 2(4)(a)(ii) is intended to reflect the fact that such differences
may be sufficiently great to bring about a difference in kind rather than
degree. Various examples were suggested
in the course of argument, but one which I think illustrates the point clearly
is that of chefs working in a kitchen.
The member of the team of chefs who has the lowest level of
qualification, skills and experience may perform the most menial culinary
tasks. His function may be so far
removed from that of the chef de cuisine who heads the team that they might
properly be regarded, in common parlance, as being in a different league, and
hence not being engaged in the same or broadly similar work. I think that the reference in reg 2(4)(a)(ii)
was designed to recognise this and that the tribunal, appreciating that in
discussion of the point, were justified in treating the differences in
qualification, skills and experience as an additional factor in making their
comparisons.
[71] My conclusion accordingly has to be that
the appellants have failed to make good their challenge to the tribunal’s
findings on the issue whether they were engaged in the same work as the
full-time firefighters or work broadly similar to theirs. I do not reach it lightly or without regret,
for the appellants’ case has obvious merit and the retained firefighters deserve
great credit for their important work, which is of such benefit to the
public. I nevertheless have to conclude
that the tribunal were not in error in the manner in which they reached their
decision, which must stand.
[72] I would therefore dismiss the appeal.
LORD MANCE.
[73] My Lords, this appeal raises two main
issues. The first is whether the twelve
retained firefighters whose cases were examined by the Employment Tribunal were
employed under the same type of contract as their chosen full-time comparators
within the meaning of reg 2(3) and (4)(a)(i) of the Part-time
195
Workers (Prevention of Less Favourable Treatment)
Regulations 2000, SI 2000/1551. The
second is whether, if they were, the retained and full-time firefighters were
‘engaged in the same or broadly similar work having regard, where relevant, to
whether they have a similar level of qualification, skills and experience’
within the meaning of reg 2(4)(a)(ii) of the 2000 regulations.
[74] The first issue raises an important
question about the status of para (f) in reg 2(3). Regulation 2(3) lists six classes of employee
or worker who ‘shall be regarded as being employed under different types of
contract’. It follows that employees or
workers within the same class are to be regarded as being employed under the
same type of contract. It is common
ground that the retained and full-time firefighters, whose contracts fall to be
compared on this appeal, both fall within the literal language of class (b),
that is ‘employees employed under a contract for a fixed term that is not a
contract of apprenticeship’. The
respondents’ argument, which was accepted by the Employment Tribunal and the
Employment Appeal Tribunal ([2003] IRLR 732, [2004] ICR 257) but rejected in
the Court of Appeal ([2004] 3 All ER 620, [2005] ICR 84), is that the retained
employees also fall within the language of class (f)—‘any other description of
worker that it is reasonable for the employer to treat differently from other
workers on the ground that workers of that description have a different type of
contract’—and that, if so, they are to be regarded as being employed under a
different type of contract from their full-time worker comparators, who only
fall within class (b). In short, where
class (f) applies, there is a different type of contract, even if, apart from
class (f), the employees or workers being compared would both fall within one
and the same of the earlier classes.
[75] The definition of ‘worker’ in reg 1(2)
embraces an employee, as well as any individual working under any other
contract whereby he—
‘undertakes to do or
perform personally any work or services for another party to the contract whose
status is not by virtue of the contract that of a client or customer of any
profession or business undertaking carried on by the individual.’
[76] At first glance, class (f) is formulated
to cover some further mutually exclusive class of worker, not falling within
any of the prior classes, in the same way as all the previous classes are
mutually exclusive. The word ‘other’ in
particular would seem to point in this direction. But, since the previous classes are
(obviously) all-embracing, there is a difficulty in thinking that this was what
the draftsman can have had in mind.
Further, if all that the draftsman intended was to cover some perceived
(though non-existent) risk that the previous categories were not all-embracing,
all that he needed to cover was any other description of worker under a type of
contract not falling within and different from any specified in any of the
preceding classes. Instead, the
draftsman has introduced an apparent element of freedom or judgment, so that
class (f) applies where ‘it is reasonable for the employer to treat’ a
particular description of worker ‘differently from other workers on the ground
that workers of that description have a different type of contract’.
[77] Class (f) seems to me to pre-suppose a
situation where an employer may or may not decide to treat a particular
description of worker as having a different type of contract and differently on
that ground, and, where if the employer is
196
reasonable in so doing, that particular description
of worker is to be regarded as having a different type of contract, although
otherwise he or she would not be so regarded.
The word ‘other’ on this basis is simply referring to the particular
description of worker so identified.
That description will necessarily be different from any of those
previously listed, in that it must at least involve additional and more
specific criteria and will therefore be an ‘other description’ from any of
them, even though, apart from it, the particular workers to whom it applies
would also be regarded as falling within one of the more general earlier
classes. The problem to which my noble
and learned friend, Baroness Hale of Richmond, refers (at [31], above) does not
in these circumstances arise on the respondents’ approach, but only on the
appellants’ approach. On the
respondents’ approach, if the employer is unreasonable in treating the particular
part-time worker differently from other workers on the ground that he or she
has a different type of contract from workers in one of the earlier classes,
class (f) simply does not apply and the part-time worker falls back into
whichever of the earlier classes he or she would fall without class (f). On the appellants’ approach, there is by
definition no earlier class into which the part-time worker can fall apart from
class (f), and the worker must end up in limbo if the employer is unreasonable.
[78] On the appellants’ approach, class (f)
seems inexplicable, except as very hesitant and faltering drafting. The respondents’ approach gives sensible
effect to class (f). The classification
achieved in classes (a)–(e) has a certain formulaic rigidity. It distinguishes, as being employed under
different types of contract falling within classes (a) and (b) respectively,
employees who may be doing precisely the same work over a long period, eg two
employees, one employed under an indefinite length contract, the other employed
under a fixed term contract. So the 2000
regulations cannot be as tightly controlling in their requirement that
employers justify differences in treatment on objective grounds as the
appellants’ case and the reasoning of the Court of Appeal would suggest. However, each of classes (a)–(e) would at the
same time by itself be capable of embracing a wide variety of contractual
engagements, which might in reality be very different in character. Thus class (a), taken by itself, would
assimilate all employees under contracts which are not for a fixed term and not
for apprenticeship, while class (b) would assimilate all employees under
contracts which are for a fixed term and not for apprenticeship. In these circumstances, class (f) is entirely
explicable on the ground that so crude a categorisation might ignore real
differences which could reasonably justify employers treating as quite
different in character the contracts of particular workers who would otherwise
fall within one and the same earlier class.
(This is, one might add, consistent with the background to the 2000
regulations, which shows that their aim was deliberately restricted to
employees or other workers on ‘the same type of contract’, under what was
described as a ‘light-touch’ approach (see the Department of Trade and
Industry’s Part-time Work: Public Consultation (URN 99/1224)
(January 2000) p 1, and HC Research Paper 00/50 on Part-time Work (15 May 2000)
p 26).
[79] Further (contrary to Maurice Kay LJ’s
statement (at [12]) that ‘such an approach forms no part of [the Framework
Directive] which gave rise to the regulations’ and to Longmore LJ’s statement
(at [30]) that it would make it ‘difficult for the directive to have its
intended effect’), it is the respondents’, rather than the appellants’,
approach that gives better effect to the underlying Council Directive (EC)
97/81 of 15 December 1997 concerning the Framework
197
Agreement of 6 June 1997 on part-time work. By cl 3.2 of the Framework Agreement:
‘The term “comparable full-time
worker” means a full-time worker in the same establishment having the same type
of employment contract or relationship, who is engaged in the same or a similar
work/occupation, due regard being given to other considerations which may
include seniority and qualification/skills.’
[80] The purpose of the Framework Directive,
as stated in its art 1, ‘is to implement the Framework Agreement’ and, by its
art 2, member states were obliged to ‘bring into force the laws, regulations
and administrative provisions necessary to comply with this Directive’. Recital (14) records that the Framework
Directive ‘binds the Member States as to the result to be achieved, whilst
leaving national authorities the choice of form and methods’. Recital (16) recites that—
‘with regard to terms
used in the Framework Agreement which are not specifically defined therein,
this Directive leaves Member States free to define those terms in accordance
with national law and practice … providing that the said definitions respect the
content of the Framework Agreement …’
[81] The definition in cl 3.2 of the Framework
Agreement involves on its face a general test, whether or not the employment
contracts or relationships under comparison are of the same or a different
type. The European Court of Justice in
its decision in Wippel v Peek & Cloppenburg GmbH & Co KG Case
C-313/02 [2005] IRLR 211, [2005] ICR 1604 looked accordingly at all aspects of
a part-time worker’s contract of employment, before concluding ([2005] IRLR 211
at 218, [2005] ICR 1604 at 1645 (para 61)) that it ‘differs, as to subject
matter and basis’ and so as to type from that of any full-time worker employed
by the defendant. The part-time worker
in Wippel’s case was engaged under a framework contract of employment
which lasted in the event from October 1998 to June 2000, but under it the
duration and scheduling of any work was determined by agreement (in practice
from week to week) between the parties and she was paid on an hourly basis for
any hours she was asked and agreed to work (plus sales commission on sales
thereby achieved). Her contention was
that she was discriminated against because her contract did not contain a fixed
weekly working time with a predetermined salary, whether or not she did or did
not work for the whole of that working time.
It is of interest that the court disposed of this ambitious argument,
not under cl 4 of the Framework Directive (equivalent to reg 5(2)(b) of the
United Kingdom regulations) on the basis that her different treatment was justified
on objective grounds (because it was her choice whether or not to work), but
rather under cl 3 of the Framework Directive on the basis that her employment
was not of the same type as that of the full-time employees with whom she
sought to compare herself. Clause 3 is
thus a threshold which must be crossed before one gets to detailed examination
of objective justification.
[82] In the light of cl 3.2 of the Framework
Agreement, reinforced by the decision in Wippel’s case, it again seems
to me likely that class (f) was conceived to introduce a greater element of
flexibility than the rigid classification of
198
classes (a)–(e) could allow, in order to cater for
particular employees or workers who would otherwise fall within one of such
classes and to allow them to be treated differently and as having a different
type of contract, if reasonable so to do on the stated ground. Indeed, unless this were so, Ms Wippel’s
‘framework contract of employment’ might even under English and Scottish law
have to be treated as being of the same type as the contracts of the full-time
workers with whom she sought to compare herself, contrary to the intent of the
Framework Agreement and Directive as explained by the European Court of
Justice.
[83] The Court of Appeal’s other objection of
substance, as opposed to linguistic analysis, to the above conclusion was that
the protection intended would otherwise be undermined. It was, Maurice Kay LJ said ([2004] 3 All ER
620 at [12], [2005] ICR 84)—
‘always open to an
employer to justify less favourable treatment on objective grounds under reg
5(2)(b) once the threshold tests of the same type of contract and engagement in
the same or broadly similar work have been satisfied. It is neither necessary nor desirable to
bring forward an objective test based on reasonableness to enable an employer
to remove an employee who would otherwise fall into one of (a)–(e). To do so would unduly complicate eligibility
and would run counter to the purpose of the legislation …’
Longmore LJ added (at [28]):
‘There are, to my mind,
serious difficulties about accepting this construction of reg 2(3), because it
effectively permits the employer to decide for himself who is and is not to be
regarded as a comparable full-time worker.
If an employee can “reasonably” treat part-time workers differently from
full-time workers and say that the ground on which he is so doing is that
part-time workers have a different type of contract from full-time workers,
there will be little or no scope for an employment tribunal to assess for
itself, as it is obliged to do under reg 5, whether the employer is treating
the part-time worker less favourably than a comparable full-time worker as
regards “the terms of his contract”. All
the more will this be the case if it is “the terms of his contract” on which
the employer is entitled to rely for the purpose of asserting that it is
reasonable to treat his part-time workers differently for the purposes of reg
2(3)(f).’
[84] However, it was the clear intention of
the Framework Agreement to create a general threshold to any comparison and to
any requirement on the part of an employer to justify, on objective grounds, a
difference in treatment of different workers doing the same or similar work. The threshold was that the workers being
compared should have ‘the same type of employment contract or
relationship’. That general threshold
appears to me, as I have said, to be reflected in, and to explain, the
introduction of class (f). The element
of judgment, introduced by the reference to ‘any other description of worker
that it is reasonable for the employer to treat differently’, is limited both
by the boundaries of reasonableness and by the fact that the employer can only
treat another description of worker differently ‘on the ground that workers of
that description have a different type of contract’. Mere differences in contractual terms would
199
not achieve this result. The European Court of Justice’s decision in
Wippel’s case illustrates the type of relatively uncommon situation in
which class (f) might apply. I do not
think that there is any risk that the construction I prefer would undermine the
purposes of the Framework Directive, or of the United Kingdom legislation.
[85] The question on this basis is whether the
present case falls within the relatively confined class (f). This was essentially a matter for the
Employment Tribunal to assess. It did so
after many days of evidence and deliberation, and expressed its reasons and
conclusions with great care. This House
should be slow to interfere with them, although I acknowledge that it is always
possible that such a tribunal may get too close to the detailed facts to be
able to stand back and make a valid overall judgment. Here, I cannot see how this can be said to have
been the case. The retained firefighters
were engaged on special contracts, under which they only made themselves
available on call within specified and agreed hours and were bound, for this
purpose, to live within five minutes of the relevant station. They had the burden of having to be prepared
for a turn-out during those hours, but benefits in the form of a substantial
annual ‘retaining’ fee (apparently in the region of £2,000 pa), remuneration on
different scales for attendance for drill or other duties, turn-out and
attendance as well as ‘bounty’ payments for long service. (I add that the tribunal also found that
full-time firefighters’ contracts include one main field of duty and
responsibility without counterpart in retained firefighters’ contracts; that is
to assist with the fire safety workload of the brigade by becoming familiar
with the relevant legislation and carrying out routine inspections and visits,
and to provide advice for other organisations and the general public—cf item 6
in the list of their duties set out by my noble and learned friend Baroness
Hale (at [39], above); and this is a field of work in which the tribunal found
that full-time firefighters spend about one-third of their time.) The Employment Tribunal (at [31]) regarded
the ‘ad hoc demand-led nature of the role of attending call-outs to emergency
situations’ as ‘virtually unique’ in their experience, and reached the overall
conclusion (at [144]) ‘that on all the evidence before us as a group of
employees it is obvious that the applicants are a very special, anomalous,
atypical and possibly unique group of employees’. They considered whether it was reasonable for
the respondents to treat them as a different description of worker to the
full-time firefighters put forward as comparators, and concluded that it
was. Further, if and in so far as it was
relevant to look at the comparative merits of the different packages provided
to retained and full-time firefighters, they concluded that the overall package
offered to and accepted by the retained firefighters could not be said to be
‘anywhere like “oppressive”’, and that they had insufficient material to assess
‘whether taken as a whole the package is “equitable” or properly described as
“equal value”’ (see [146]).
[86] No basis has in my view been shown for
disagreeing with the tribunal’s assessment of the facts regarding the
differences in the type of contracts, and I would disagree with the Court of
Appeal and restore the conclusions reached by the Employment Tribunal and Employment
Appeal Tribunal in favour of the respondents on this ground, and dismiss the
appellants’ appeals accordingly.
[87] It is unnecessary for me in these
circumstances to express a view on the second main issue in the appeal, beyond
saying that I see great force in my noble and learned friend Lord Carswell’s
analysis. This was a careful evaluation,
after hearing much evidence which the House has not examined and giving the
issues
200
much thought, by an expert tribunal. An appellate court should not be astute to
dissect the tribunal’s reasoning. The
primary question (which it clearly identified) was whether the full- and
part-time firefighters were engaged in the same or broadly similar work. Even under close dissection, I find it
difficult to see how the tribunal can be said to have adopted a wrong test in
law. Equally, I find it difficult to see
how it can be said, in its analysis of the evidence, to have focused
insufficiently on similarities, and to have concentrated instead on differences
(particularly in qualifications, skill and experience) not necessarily bearing
on work actually undertaken. As it would
appear to me at present, the tribunal had all relevant considerations of law
and fact in mind.
Appeal allowed.
Kate
O’Hanlon Barrister.
201
[2006] 2 All ER 202
Langley and others v Liverpool City Council and another
[2005]
EWCA Civ 1173
FAMILY; Children: HUMAN RIGHTS; Family Life, Privacy
COURT OF APPEAL, CIVIL DIVISION
THORPE,
DYSON AND LLOYD LJJ
13,
14 JULY, 11 OCTOBER 2005
Child – Care – Local authority – Emergency
protection order – Right to respect for private and family life – Whether
police having power to take child into police protection after grant of
emergency protection order – Children Act 1989, ss 44, 46 – Human Rights Act 1998,
Sch 1, Pt I, art 8.
The first and second claimants were the parents of C,
the third claimant, who at the material time was almost four years old, J, the
fourth claimant, who then was nine years old and R, the fifth claimant, who
then was five years old. The first
claimant’s vision was such that he was registered blind and he had no driving
licence. The social services department
of the first defendant local authority had had dealings with the claimants for
a considerable period of time; a particular concern was that the first claimant
persisted in driving a car with the children as passengers despite assurances
that he would not do so. The authority
applied for an emergency protection order (EPO) under s 44a of the Children Act 1989 upon discovering that
the first claimant had driven the children from Liverpool to Derby and intended
to continue to drive the children in Derby and then to drive back to
Liverpool. Under s 44 of the 1989 Act
the court could make an EPO if it was satisfied that there was reasonable cause
to believe that a child was likely to suffer significant harm if, inter alia,
he was not removed to accommodation provided by or behalf of the
applicant. An EPO was granted giving the
authority parental responsibility and authorising them to remove the
children. The authority’s social worker
failed to contact the claimants during normal working hours on the day the EPO
was granted and she requested police assistance to find C, who was thought to
be back in Liverpool while J and R remained at a specialist school in Derby for
assessment. The social worker gave the
police officer a copy of the EPO. The police officer visited the claimants’
home in the evening and found the first and second claimants and C. He telephoned the authority’s emergency duty
team who confirmed that C was to be taken into care. He removed C to foster parents. The following day social workers removed J
and R from the school in Derby under the EPO.
The claimants brought proceedings challenging the lawfulness of the
removals. The judge held that the
authority had acted unlawfully and in
breach of the claimants’ right to respect for private and family life contained
in art 8b of the European Convention for the Protection
of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human
Rights Act 1998). He held that the
second defendant chief constable had acted unlawfully in relation to the
removal of C. The judge interpreted the
1989 Act to mean that s 46c, which gave a police officer the power to remove
a child to
________________________________________
a
Section 44, so far as material, is set out at [13], below
b
Article 8 is set out at [49], below
c
Section 46, so far as material, is set out at [14], below
________________________________________
202
suitable accommodation where he had reasonable cause
to believe that the child would otherwise be likely to suffer significant harm
could not be exercised once an EPO had been granted. The authority and the chief constable
appealed and the first and second claimants and C appealed against the
dismissal of their claim that the removal of C by the police officer had
violated their art 8 rights.
Held – (1) The power to remove a child under s
46 of the 1989 Act could be exercised even where an EPO was in force in respect
of the child. There was no provision
which expressly prohibited the police from invoking s 46 where an EPO was in
force and the relevant provisions of the 1989 Act should be construed so as to
further the manifest object of securing the protection of children who were at
risk of significant harm. A construction
of the Act which prohibited a constable from removing a child under s 46 where
he had reasonable cause to believe that the child would otherwise be likely to
suffer significant harm would frustrate that object. Under the detailed and carefully structured
scheme in the 1989 Act for the removal of children in circumstances where there
was reasonable cause to believe that they were suffering or likely to suffer
significant harm a police officer who knew that an EPO was in force should not
exercise the power of removing a child under s 46 unless there were compelling
reasons to do so (see [24]–[40], [72], [73], [79], below).
(2) In the instant case, although the police officer had
jurisdiction to remove C under s 46 there had been no compelling reasons for
exercising that power when to his knowledge an EPO was in force which
authorised the authority to remove C into the care of foster carers; the
removal of C had therefore been unlawful and in breach of art 8 of the
convention. The authority had played a
major part in securing the removal of C by the police officer and the
conclusion of the judge that the authority was liable to the adult claimants
and C for his removal was correct.
However, the judge had been wrong to hold that the decision of the
authority to seek an EPO had been in breach of art 8 as it had been a
reasonable and proportionate response to the circumstances. The authority had also been justified in
executing the EPO in relation to J and R. Accordingly, the authority’s appeal
against the findings of liability in relation to C would be dismissed but in
relation to J and R would be allowed.
The appeal of the adult claimants and C against dismissal of their
claims for breach of art 8 would be allowed.
The appeal of the chief constable would be dismissed (see [44]–[47],
[53], [54], [63], [66], [70], [72], [73], below).
Notes
For emergency protection orders and for taking a child
into police protection, see 5(3) Halsbury’s Laws (4th edn reissue) paras
908–911, 919–921
For the Children Act 1989, ss 44, 46, see 6 Halsbury’s
Statutes (4th edn) (2003 reissue) 475, 483.
For the Human Rights Act 1998, Sch 1, Pt I, art 8,
see 7 Halsbury’s Statutes (4th edn) (2004 reissue) 707.
Cases referred to in judgments
B v UK (1987) 10
EHRR 87, [1987] ECHR 9840/82, ECt HR.
Hicks v Chief Constable
of the South Yorkshire Police [1992] 2 All ER 65, HL.
K v Finland
[2001] 2 FCR 673, ECt HR.
McMichael v UK
[1995] 2 FCR 718, ECt HR.
203
Nottinghamshire CC v
P, Re P (minors) (local authority: prohibited steps
order) [1993] 3 All ER 815, [1994] Fam 18, [1993] 3 WLR 637, CA.
P v UK [2002] 3
FCR 1, ECt HR.
Padfield v Minister
of Agriculture Fisheries and Food [1968] 1 All ER 694, [1968] AC 997, [1968]
2 WLR 924, HL.
R (on the
application of Daly) v Secretary of State for the Home Dept [2001]
UKHL 26, [2001] 3 All ER 433, [2001] 1 AC 532, [2001] 2 WLR 1622.
R (on the
application of ProLife Alliance) v British Broadcasting Corp [2003]
UKHL 23, [2003] 2 All ER 977, [2004] 1 AC 185, [2003] 2 WLR 1403.
TP v UK [2001] 2
FCR 289, ECt HR.
Venema v Netherlands [2003]
1 FCR 153, ECt HR.
Wainwright v Home
Office [2003] UKHL 53, [2003] 4 All ER 969, [2004] 2 AC 406, [2003] 3 WLR
1137; affg [2001] EWCA Civ 2081, [2003] 3 All ER 943, [2002] QB 1334,
[2002] 3 WLR 405.
Walker (Inspector
of Taxes) v Centaur Clothes Group Ltd [2000] 2 All ER 589, [2000] 1
WLR 799, HL.
Appeals
The claimants were Anthony Langley, Linda Langley, Callum
Langley (a child by his mother and next friend Linda Langley), James Langley (a
child by his mother and next friend Linda Langley) and Ryan Langley (a child by
his mother and next friend Linda Langley).
The adult claimants and Callum appealed from that part of the decision
of Judge Morgan in the Liverpool County Court dismissing their claim that the
second defendant, the Chief Constable of Merseyside Police had acted in breach
of their rights under art 8 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human
Rights Act 1998) in the removal of Callum from his home on 25 September
2001. Liverpool City Council, the first
defendant, appealed from that part of the judge’s decision by which he held
that it had acted unlawfully in the removal of Callum and in the removal of
James and Ryan from the Royal School for the Deaf on 26 September 2001 and was
liable to all the claimants for assault, false imprisonment and breach of their
art 8 rights. The chief constable
appealed from that part of the judge’s decision by which he held that he had
acted unlawfully in relation to the removal of Callum and was liable to Callum
for assault and false imprisonment. The
facts are set out in the judgment of Dyson LJ.
Charles RC Prior
(instructed by Graeme Creer, Liverpool) for the council.
Graham Wells (instructed
by Berrymans Lace Mawer) for the chief constable.
Rajeev Thacker
(instructed by Jackson & Canter) for the claimants.
Cur adv
vult
11 October 2005.
The following judgments were delivered.
DYSON LJ.
INTRODUCTION
[1] The Langley family live in Liverpool. The first and second claimants are the
parents. They have four children. At the time that is material to these
proceedings (September 2001), they were living together at 51 Sceptre Road,
Liverpool. The three older children are
James (then aged nine-and-a-half years),
204
Ryan (then aged five-and-a-half years) and Callum
(then almost four years of age). The
fourth child (Rebecca) who is not party to these proceedings was two months
old. These proceedings concern the
lawfulness of the removal of the three oldest children into the care of foster
parents. Callum was removed from his
home on 25 September and James and Ryan from the Royal School for the Deaf the
following day. After a five-day trial,
Judge Morgan found that the first defendant (the council) had acted unlawfully
in relation to the removal of all three children. He held that the council was liable to all
five claimants for assault and false imprisonment as well as for breach of
their rights under art 8 of the European Convention for the Protection of Human
Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights
Act 1998) (the convention). He found
that the second defendant (the chief constable) had acted unlawfully in
relation to the removal of Callum, and held that he was liable to Callum for
assault and false imprisonment. But he
dismissed the claims by the parents and Callum that the chief constable had violated
their art 8 rights and also dismissed their claims that he had been negligent
and committed the tort of misfeasance in public office.
[2] Both the council and the chief constable
appeal against the findings of liability.
Callum and the parents appeal against the dismissal of their claim that
the removal of Callum was in breach of their art 8 rights. At the heart of these appeals lies an
important question concerning the powers of the police under the Children Act
1989 to remove children who are in need of emergency protection. It concerns the relationship between ss 44
and 46 of the 1989 Act. The judge held
as a matter of statutory interpretation that, once an emergency protection
order (EPO) has been granted under s 44 and as long as it remains in force, the
police cannot remove a child to suitable accommodation under s 46.
THE FACTS
[3] All the members of the family except
Callum are profoundly deaf. Mr Langley
also suffers from Usher’s syndrome which means that he has tunnel vision and
night blindness. He was registered blind
in 2000, and has been without a valid driving licence since September 1999.
[4] The Social Services Department of the
council has had dealings with the family for a considerable period of
time. There have been several problems
and at the material time the three oldest children were on the Child Protection
Register. A number of child protection conferences had been held both in Devon
(where the family had previously lived) and Liverpool. One particular concern expressed in the
conference protection plans was that Mr Langley persisted in driving a car with
the children as passengers, despite the assurances that had been given by both
parents that he would not do so. The
judge accepted the evidence of the social services witnesses that he had driven
the children fairly frequently. At the
conference held on 6 August 2001, a child protection plan was agreed which
included the provision that ‘Social Services will instigate Care Proceedings in
relation to the children, with the children remaining in the care of their parents
subject to the Child Protection Plan’.
[5] This was the background to the events of
24, 25 and 26 September 2001. On 24
September, Mr Langley drove a Range Rover from Liverpool to Derby. In the car with him were Mrs Langley and the
three older children. The purpose of the
journey was to take Ryan and James to the Royal School for the Deaf for four
days of assessment. Ms Patricia O’Brien
is a social worker employed by the Supported Living and Community Safety
Portfolio of the council who had been
205
involved with the family since March 2001. She used to visit them weekly, and on each
occasion she mentioned her concerns about Mr Langley’s driving. She received a message on 24 September from
James Lynch, the Langley family support worker, that the family had gone to
Derby and that their car was missing from outside the house. She contacted the school, who confirmed that
Mr Langley had been seen driving into the school car park. She was told that Mr and Mrs Langley and
Callum were not staying in Derby, but were intending to return to Liverpool and
then go back to Derby on 27 September to fetch James and Ryan.
[6] She contacted the council’s legal services
department on the morning of 25 September and instructed them to apply for an
EPO. A without notice application was
duly made to the Liverpool family proceedings court. The reasons given in the application form for
the existence of reasonable cause to believe that the three children were
likely to suffer significant harm if not removed to accommodation provided by
the council were that:
‘Mr Langley suffers from
Ushers Syndrome and is registered blind.
Despite this, he has driven the children to Derby. According to an independent witness he has
continued to drive the children whilst in Derby. The family intend to return to Liverpool on
Thursday 27th September 2001. The local
authority has grave concerns for the children’s safety.’
[7] Ms O’Brien and her team manager Patricia
McGaw attended court on the morning of 25 September. They both gave evidence in support of the
application. At 11.20 hrs, the court
granted an EPO in respect of all three children giving the council parental
responsibility and authorising them to remove the children to accommodation
provided by or on behalf of the council.
The order was expressed to end at midnight on 3 October.
[8] In fact, by the time the EPO had been
granted, Mr Langley had driven Mrs Langley and Callum back to Liverpool,
leaving the two older children at the school in Derby. Ms O’Brien attempted to execute the EPO by
going to their home in Liverpool. But
nobody was there and the car was not outside the house. The judge found that Mr and Mrs Langley were
out in the car with Callum and Rebecca.
Ms O’Brien said that, if the family had been present in the house, she
would have sought the assistance of the police and asked them to accompany her
when she executed the EPO: they were a volatile family and she would not have
wished to act on her own.
[9] Having failed to contact the Langleys
during normal working hours, Ms O’Brien contacted the council’s emergency duty
team (EDT) at about 18.00 hrs. At her
request, they arranged for foster parents to be alerted. Ms O’Brien then went to Walton Lane Police
Station. She spoke to Police Sergeant
Ray Jones, told him of her concerns for the safety of Callum and requested
police assistance to find the missing child.
She handed PS Jones a copy of the EPO and told him that foster parents
had been alerted to take Callum into their care.
[10] At 19.20 hrs, together with three other
police officers PS Jones went to 51, Sceptre Road and found the family at
home. Mr Langley opened the door and
permitted PS Jones to enter the house.
He showed Mr and Mrs Langley a copy of the EPO. Callum was then awakened and taken from his
bed. The officer decided to call social
services before deciding how to proceed.
He spoke to the EDT who confirmed that they wanted Callum to be taken
into care. In his witness statement he
explains that he considered that he had to decide whether
206
to leave Callum at home, or remove him. He decided to remove Callum to the foster
parents. He said that his main concern
was that Callum might not be safe if he remained at home. He had noticed that the bonnet of the car was
warm when he arrived at the property, and thought that there was a risk that
the Langleys would remove Callum by car.
In view of this concern and the response of the EDT, he decided that the
only way to ensure Callum’s safety was to remove him to the foster
parents. Together with two of the other
officers, this is what he did.
[11] The following morning, Ms McGaw met Mrs
Langley and her sister at the social services offices. A sign interpreter was also present. Ms McGaw explained why the council had obtained
the EPO. She discussed the situation and
told Mrs Langley that social services intended to remove the two older children
from the school in Derby into the care of the foster parents. She encouraged Mrs Langley to seek legal advice. On the same day, Ms O’Brien and Mr Lynch went
to the school in Derby to remove James and Ryan. Once they discovered what had happened, the
school decided that the children should leave as soon as possible. Ms O’Brien told the children that they would
be staying with carers with whom they had stayed previously and where they had
been happy. According to Ms O’Brien, the
only thing that upset them was the fact that they were leaving the school
before their assessments had been completed.
[12] On 2 October, the EPO was extended for
seven days with the consent of Mr and Mrs Langley. On 8 October, an interim care order was made
in respect of all four children that they be placed in the care of the council.
THE STATUTORY FRAMEWORK
[13] Section 44 of the Children Act 1989
enables the court to make an EPO. So far
as material, it provides:
‘(1) Where any person
(“the applicant”) applies to the court for an order to be made under this
section with respect to a child, the court may make the order if, but only if,
it is satisfied that—(a) there is reasonable cause to believe that the child is
likely to suffer significant harm if—(i) he is not removed to accommodation
provided by or on behalf of the applicant; or (ii) he does not remain in the
place in which he is then being accommodated …
(4) While an order under
this section (“an emergency protection order”) is in force it—(a) operates as a
direction to any person who is in a position to do so to comply with any
request to produce the child to the applicant; (b) authorises—(i) the removal
of the child at any time to accommodation provided by or on behalf of the
applicant and his being kept there; or (ii) the prevention of the child’s
removal from any hospital, or other place, in which he was being accommodated
immediately before the making of the order; and (c) gives the applicant
parental responsibility for the child.
(5) Where an emergency
protection order is in force with respect to a child, the applicant—(a) shall
only exercise the power given by virtue of subsection (4)(b) in order to
safeguard the welfare of the child; (b) shall take, and shall only take, such
action in meeting his parental responsibility for the child as is reasonably
required to safeguard or promote the welfare of the child (having regard in
particular to the duration of the order) …’
[14] Section 46 gives the police the power to
remove and accommodate children in cases of emergency. Section 46(1) provides:
207
‘Where a constable has
reasonable cause to believe that a child would otherwise be likely to suffer
significant harm, he may—(a) remove the child to suitable accommodation and
keep him there …’
A child with respect to whom a constable has exercised his
powers under s 46 is referred to as having been taken into ‘police protection’
(sub-s (2)). The constable concerned is
required as soon as reasonably practicable after taking a child into police
protection to take the various steps specified in sub-s (3). These include informing the local authority
of the steps that have been, and are proposed to be, taken with respect to the
child and the reasons for taking them (para (a)); giving details to the
authority within whose area the child is ordinarily resident (‘the appropriate
authority’) of the place at which the child is being accommodated (para (b));
securing that the case is inquired into by a designated officer (para
(e)). Subsection (5) provides that, on
completing any inquiry under sub-s (3)(e), the officer conducting it shall
release the child from police protection unless he considers that there is
still reasonable cause for believing that the child would be likely to suffer
significant harm if released. No child
may be kept in police protection for more than 72 hours (sub-s (6)). Subsection (7) provides:
‘While a child is being
kept in police protection, the designated officer may apply on behalf of the
appropriate authority for an emergency protection order to be made under
section 44 with respect to the child.’
Subsection (9) provides that while a child is being kept
in police protection, neither the constable concerned nor the designated
officer shall have parental responsibility for him, but the designated officer
shall do what is reasonable for the purposes of safeguarding or promoting the
child’s welfare.
[15] Section 47(1) provides:
‘Where a local authority—(a)
are informed that a child who lives, or is found, in their area—(i) is the
subject of an emergency protection order; or (ii) is in police protection … or
(b) have reasonable cause to suspect that a child who lives, or is found, in
their area is suffering, or is likely to suffer, significant harm, the
authority shall make, or cause to be made, such inquiries as they consider
necessary to enable them to decide whether they should take any action to
safeguard or promote the child’s welfare.’
[16] Subsection (3) provides that the
inquiries shall be directed in particular towards establishing ‘(c) whether, in
the case of a child who has been taken into police protection, it would be in
the child’s best interests for the authority to ask for an application to be
made under section 46(7)’.
[17] Section 48 gives powers to assist in the
discovery of children who may need emergency protection. Section 48(3) provides that an EPO ‘may
authorise the applicant to enter premises specified by the order and search for
the child with respect to whom the order is made’. Section 48 also provides:
‘(9) Where, on an
application made by any person for a warrant under this section, it appears to
the court—(a) that a person attempting to exercise powers under an emergency protection
order has been prevented from doing so by being refused entry to the premises
concerned or access to the child concerned; or (b) that any such person is
likely to be so prevented from exercising any such powers, it may issue a
warrant authorising any constable to assist the person mentioned in paragraph
(a) or (b) in the exercise of those powers, using reasonable force if
necessary.
208
(10) Every warrant
issued under this section shall be addressed to, and executed by, a constable
who shall be accompanied by the person applying for the warrant if—(a) that
person so desires; and (b) the court by whom the warrant is issued does not
direct otherwise.’
THE JUDGMENT
[18] The judge held that the removal of Callum
by the police was unlawful. He said (at
para 14): ‘Once the EPO has been granted, the authority for the police to
attend to assist must be a warrant under s 48(9).’ In answer to the case advanced on behalf of
the chief constable that the removal was sanctioned under s 46 and that PS
Jones was not purporting to execute the EPO, but had relied on the EPO merely
as strong evidence that Callum was at risk, the judge said:
‘So it would be a case
of the cart before the horse. If an
officer can simply rely on his police protection powers under s 46 to assist
the applicant to remove a child under the authority of an EPO I have to ask
what is the purpose of s 48(9)? It has
no purpose at all.’
[19] He then explained (at para 15) why he
rejected the chief constable’s case that PS Jones was purporting to remove
Callum pursuant to s 46:
‘Unlike an arrest there
is no requirement in such a case for the police officer to state at the time
which statutory power he is purporting to exercise. As the only contemporaneous document produced
at the trial, I believe that the incident log provides the key to the powers
the police were seeking to exercise in removing Callum from his home. As I quoted in para 10 (supra) the log (120)
shows “Sgt Jones will make to home address to effect EPO and take”. At 20.55 hrs it records “EPO effected”. He was holding a copy of the EPO, showed it
to the Langley parents and to Nicola Green to explain why the police were there
and was clearly purporting to execute it.
Furthermore Ms Patricia McGaw, a senior and very experienced social
worker and then line manager to Ms O’Brien, when asked in evidence her
understanding of when the EPO had been executed, said initially in evidence,
“when the police arrived and removed Callum”.
She went on to say that it could also be when he was delivered to foster
parents but her first reaction I believe to be the true one. In my judgment Sgt Jones’s statement that he
was using police protection powers to remove the child and executing the EPO
only when handing him over to Social Services is an ex post facto attempt to
justify the action in law. The
consequence is that the failure to apply to the court for a warrant under s
48(9) authorising a constable to assist the applicant in the exercise of these
powers and the failure of the applicant or his representative to attend in my
judgment means that the police action in removing Callum was unlawful …’
[20] In short, therefore, the judge held that,
if an EPO is in force, the police cannot invoke s 46, and the only part that
the police can play in the removal of a child is by assisting, if authorised to
do so by a warrant issued pursuant to s 48(9).
[21] Having found that the removal was
unlawful, the judge turned to consider each of the claims. He held that the council had acted in breach
of art 8 of the convention in that, since there was no ‘urgent’ danger, they
should have sought a less drastic remedy than removal of the child, namely a
prohibited steps
209
order (PSO) under s 8 of the 1989 Act prohibiting Mr
Langley from driving. The judge said (at
para 20):
‘When asked if a PSO had
been considered Ms McGaw of Social Services said it had not. She said that it was an emergency situation
with a journey taking place or about to take place as a danger to the children. She went on to say, referring to a PSO, “It
is one thing to get one but it’s another to consider if it will be complied
with”. Warnings and recommendations of
the case conferences had failed to stop Mr Langley but as yet no court order of
any kind had been obtained to order him to cease driving the children. Such an order would be far more powerful than
a recommendation and the effect of its breach could be clearly explained to
him. In my judgment rather than the
drastic step of removing young children from their parents all alternatives
should be considered. This obvious one
had apparently not been. The urgent
danger referred to by Ms McGaw was no longer as urgent and the wrong basis on
which the EPO had been obtained was now plain.’
[22] As regards the council, the judge concluded
(at para 21):
‘For the reasons I have
given I have decided that the first defendants were in breach of the claimants’
rights under art 8 of the convention in the obtaining of the EPO, in delegating
its execution in relation to Callum to the second defendants and by their EDT
on the telephone to Sgt Jones ordering Callum’s removal from the home
notwithstanding the changed situation.
Further they were in breach of those rights in removing Ryan and James
from Derby and placing them with foster parents when no emergency justified
such removal. They are therefore guilty
of an unlawful act by virtue of s 6(1) of the 1998 Act for which the claimants
must be compensated in statutory damages under s 8 of the 1998 Act and such
other damages as may be just.’
[23] As for the police, the judge said:
‘The second defendants
of course played a part in the removal of Callum from his home without lawful
authority which must be reflected in findings of assault and false imprisonment
against them. However so far as the 1998
Act claim is concerned I am not satisfied that it could be said that Sgt
Jones’s response was disproportionate to the situation as he found it given the
limited state of his knowledge of the background to the EPO. He had gone to Sceptre Road having been told
that the child concerned was missing and when the child was found to be in bed
he rang the EDT before taking any further action. As I have already recorded he was told by
them that they “wanted the child taken into care”. What followed must in my judgment be laid
principally at the door of the first defendants rather than the police and I do
not therefore find against the second defendant under this head.’
THE RELATIONSHIP BETWEEN SECTIONS 44 AND 46 OF THE
1989 ACT
[24] The first question is whether the judge
was right to hold that, once an EPO has been granted and so long as it remains
in force, the police cannot exercise the power to remove a child under s 46
even if the statutory criteria for its exercise exist, ie that the constable
has reasonable cause to believe that, unless the child is removed, he or she is
likely to suffer significant harm.
210
[25] The starting point is to observe that the
1989 Act contains no provision which expressly prohibits the police from
invoking s 46 where an EPO is in force.
It follows that, if the power to remove a child under s 46 cannot be
exercised where an EPO is in force, this must be because the 1989 Act so
provides by necessary implication.
[26] Are there any provisions in the 1989 Act
which compel such an implication? There
are several possible candidates. Section
46(3) provides that, as soon as practicable after taking a child into police
protection, the constable concerned shall ‘(a) inform the local authority
within whose area the child was found of the steps that have been, and are
proposed to be, taken with respect to the child under this section and the
reasons for taking them’ and ‘(b) give details to the authority within whose
area the child is ordinarily resident (“the appropriate authority”) of the
place at which the child is being accommodated’. I accept that, where an EPO is in force, it
will often be unnecessary for the constable to inform the authority in
accordance with (a) or (b), because the authority will already have the
information. But in my judgment the
inference that police protection is therefore not available under s 46 where an
EPO is in force is unwarranted. First,
in so far as any submission to the contrary is based on a surplusage argument,
it is weak: see, for example, per Lord Hoffmann in Walker (Inspector
of Taxes) v Centaur Clothes Group Ltd [2000] 2 All ER 589 at 595,
[2000] 1 WLR 799 at 805. Second, even
where an EPO is in force, the local authority and (if different) the
appropriate authority may not have the information referred to in s 46(3)(a)
and (b). For example, the EPO may have been obtained by an ‘authorised person’
rather than a local authority (see s 44(1)(b) and (c)).
[27] Section 46(7) provides that, while a
child is being kept in police protection, the designated officer may apply on
behalf of the appropriate authority for an EPO under s 44. But the existence of this provision does not
necessarily imply that the police protection powers given by s 46 cannot be used
where an EPO is already in force. It
merely gives the designated officer the discretion to apply for an EPO where
one is not in force.
[28] I have already set out the relevant parts
of s 47(1) and (3) at [15] and [16], above.
In my judgment, the s 47 duty to investigate does not by implication
preclude the ability to use the power to remove a child under s 46 where an EPO
is in force. If an EPO is already in
force, s 47(3)(c) will not come into play, because the child’s best interests
do not require the authority to ask for an application to be made under s
46(7): such an application is unnecessary in these circumstances. Section 47(3)(c) certainly contemplates that
an EPO may not be in force in relation to a child who has been taken
into police protection; but in my view it is not implicit in this provision
that a child cannot be taken into police protection where an EPO is
already in force.
[29] Finally, s 48(9) and (10). The judge was impressed by the point that if
the police can exercise the s 46 power where an EPO is in force, then s 48(9)
serves no purpose. This is another
surplusage argument as to which see [26], above. In my judgment, s 48(9) does not bear the
weight attributed to it by the judge. It
caters for the specific problem that arises where the person who is attempting
to exercise powers under an EPO has been, or is likely to be, prevented from
doing so by being refused entry to premises or access to the child. In such circumstances, the court may issue a
warrant authorising a constable to assist the person in the exercise of those
powers, using reasonable force if necessary.
I do not see how the existence of the jurisdiction to grant a warrant in
such
211
circumstances is inconsistent with the existence of
the jurisdiction to remove a child under s 46 where an EPO is in force. For reasons that I shall explain, where an
EPO is in force it is almost always preferable for the removal of children to
be effected by professional social workers executing the EPO rather than by
police officers acting under s 46. But
it is sometimes necessary for social workers to obtain police assistance, and
that is why s 48(9) is important.
[30] In my judgment, therefore, there is
nothing in the language of the 1989 Act which compels the conclusion that s 46
cannot be invoked where an EPO is in force.
As Mr Wells points out, it would be most unfortunate if the position
were otherwise. Two examples will
suffice to demonstrate this. Let us
suppose that an EPO is in force, but a constable is unaware of it. He comes across a child who he has reasonable
cause to believe would be likely to suffer significant harm if not removed (ie
the s 46(1) criteria are satisfied). If
the judge is right, the removal of the child, otherwise unimpeachable, is
unlawful because, unknown to the officer, an EPO is in force in respect of the
child. In my view, the jurisdiction to
remove a child under s 46 where an EPO is in force cannot depend on whether the
constable is aware of its existence.
There is nothing in the 1989 Act which suggests that the officer’s knowledge
is relevant. On the judge’s
interpretation, the existence of the EPO is fatal: of itself it renders the
officer’s removal unlawful. If this is
right, its implications for the protection of children at risk of significant
harm are serious. Since police officers
cannot have a comprehensive knowledge of all the EPOs that are in force, they
would be at risk of acting unlawfully every time they remove a child under s
46. Such an interpretation would be
likely to discourage the police from invoking s 46. In this way, there would be a real danger
that one of the important powers provided by Parliament for the protection of
children at risk would be emasculated.
[31] In the second example, an EPO has been
made in respect of a child on the application of the local authority in
Liverpool, and the constable comes across the child in Cornwall. Let us suppose that the officer is aware of
the EPO, and he considers that the child is in real danger. He considers that it is necessary to act
urgently to remove the child to suitable accommodation in order to protect him
or her, and it will take some time to contact the Social Services of Liverpool
City Council to alert them to the need to execute the EPO. It would be most unfortunate if in such
circumstances the constable were unable to invoke s 46 to protect the child.
[32] The relevant provisions of the 1989 Act
should be construed so as to further the manifest object of securing the
protection of children who are at risk of significant harm. A construction of the 1989 Act which
prohibits a constable from removing a child under s 46 where he has reasonable
cause to believe that the child would otherwise be likely to suffer significant
harm would frustrate that object. I would,
therefore, reject the judge’s interpretation of the Act. The s 46 power to remove a child can be
exercised even where an EPO is in force in respect of the child.
[33] The next question is whether, on the
assumption that the criteria in s 46(1) are met, there are any limitations on
the power of the police to remove a child under s 46 where an EPO is in
existence. No such limitations are
expressed in the 1989 Act. But it is
trite law that discretionary statutory powers must be exercised to promote the
policy and objects of the statute (see Padfield v Minister of Agriculture
Fisheries and Food [1968] 1 All ER 694 at 699, [1968] AC 997 at 1030). The broad policy and objects of Pt V of the
1989 Act are not in doubt: they are to provide for the protection of children
in circumstances where there is reasonable
212
cause to believe that they are suffering or likely to
suffer significant harm. But in enacting
Pt V, Parliament has provided a detailed and carefully structured scheme for
the removal of children in such circumstances.
[34] The first point to make about s 44 is
that an EPO is a court order, which cannot be made unless the court is
satisfied that the conditions prescribed by s 44(1) (a), (b) or (c) are
met. An EPO gives an applicant parental
responsibility for the child, but it does not of itself require the applicant
to remove the child. The applicant may
only remove the child ‘in order to safeguard the welfare of the child’ and
‘shall only take, such action in meeting his parental responsibility for the
child as is reasonably required to safeguard or promote the welfare of the
child’ (sub-s (5)). The court may give
such directions (if any) as it considers appropriate ‘with respect to (a) the
contact which is, or is not, to be allowed between the child and any named
person; (b) the medical or psychiatric examination or other assessment of the
child’ (sub-s (6)). Where an EPO is in
force, the applicant shall, subject to any direction given under sub-s (6)
allow the child reasonable contact with the persons specified in sub-s (13).
[35] The s 46 regime is quite different. The court is not involved. A police constable is authorised to remove a
child if he has reasonable cause to believe that the child would otherwise be
likely to suffer significant harm. As we
have already seen, as soon as is reasonably practicable after taking the child
into police protection, the constable must inform the local authority within
whose area the child was found of the steps that have been, and are proposed to
be, taken and the reasons for taking them, and give details to the appropriate
authority of the place at which the child is being accommodated. The designated officer may apply on behalf of
the appropriate authority for an EPO.
[36] For the reasons which follow, I would
hold that, where a police officer knows that an EPO is in force, he should not
exercise the power of removing a child under s 46, unless there are compelling
reasons to do so. The statutory scheme
shows that Parliament intended that, if practicable, the removal of a child
from where he or she is living should be authorised by a court order and
effected under s 44. Parliament could
have provided simply that specified persons could remove children if the
statutory criteria are satisfied without any court involvement at all. But the removal of children, usually from
their families, is a very serious matter.
It is, therefore, not at all surprising that Parliament decided that the
court should play an important part in the process. This is a valuable safeguard. The court must be satisfied that the
statutory criteria for removal exist.
[37] There are a number of important
differences between the ss 44 and 46 regimes.
They include the following.
Firstly, the court can give directions with respect to contact, examinations
and assessments. This is a valuable
power not available to the police.
Secondly, an EPO gives the applicant parental responsibility, whereas
while a child is being kept in police protection under s 46 neither the
constable nor the designated officer has parental responsibility. Thirdly, no child can be kept in police
protection for more than 72 hours, whereas an EPO may have effect for a period
not exceeding eight days (s 45(1)), and this period may be extended by up to
seven days (s 45(5)).
[38] In my judgment, the statutory scheme
clearly accords primacy to s 44. Removal
under s 44 is sanctioned by the court and it involves a more elaborate,
sophisticated and complete process than removal under s 46. The primacy accorded to s 44 is further
reinforced by ss 46(7) and 47(3)(c). The
significance of these provisions is that they show that it was contemplated by
Parliament that an
213
EPO may well not be in force when a removal is
effected under s 46, and that removal under s 46 is but the first step in a
process which may later include an application for an EPO.
[39] It is also relevant to point out that
children who require emergency protection and have to be removed are often
already well known to the social services department within whose area the
children are ordinarily resident. It is
obviously preferable for the removal of a child to be effected if possible by,
or at least with the assistance of, social workers who are known to the child,
rather than by uniformed police officers who will almost certainly be strangers
to the child. Whether known to the child
or not, a social worker has skills in dealing with the removal of children from
their homes which the most sensitive police officer cannot be expected to
match.
[40] I would, therefore, hold that (i) removal
of children should usually be effected pursuant to an EPO, and (ii) s 46 should
be invoked only where it is not practicable to execute an EPO. In deciding whether it is practicable to
execute an EPO, the police must always have regard to the paramount need to
protect children from significant harm.
[41] We were shown Home Office circular
44/2003 on the duties and powers of the police under the 1989 Act. This came into force on 9 August 2003. It was not in force at the time of the events
with which this appeal is concerned. It
does not have any statutory force.
Nevertheless, I find what it says about s 46 instructive, namely:
‘When to use police
protection
14. Police protection
powers should only be used when necessary, the principle being that wherever
possible the decision to remove a child from a parent or carer should be made
by a court.
15. All local
authorities should have in place arrangements (through their local Chief
Executive and Clerks to the Justices) whereby out of hours applications for Emergency
Protection Orders (EPOs – see paragraphs 49 to 54 below) may be made speedily
and without an excess of bureaucracy.
Police protection powers should only be used when this is not possible.’
[42] The circular that was in force in
September 2001 was Home Office circular 54/1991. Para 13 states: ‘Section 46 provides for the
taking of a child into police protection in cases of emergency when there is no
time to apply for an order.’ Both
circulars are consistent with my interpretation of the 1989 Act.
WAS THE REMOVAL OF CALLUM UNLAWFUL?
[43] There was an issue before the judge as to
whether PS Jones removed Callum under s 46 (as he contended) or whether he did
so by purporting to execute the EPO under s 44 (as the claimants
contended). The judge held that the
officer was purporting to execute the EPO and that his statement that he was
invoking s 46 was ‘an ex post facto attempt to justify the action in law’. By his third ground of appeal, the chief
constable seeks to challenge this finding.
For reasons that I shall explain, I do not find it necessary to resolve
this issue. At this stage of the
discussion, I shall assume that PS Jones removed Callum under s 46.
[44] It follows from the analysis at
[24]–[32], above, that PS Jones had jurisdiction to remove Callum pursuant to s
46. Were there compelling reasons for
exercising this power when, to his knowledge, an EPO was in force which
authorised the council to remove Callum into the care of foster carers? In my judgment, there were no such reasons. I intend no personal criticism of PS Jones
214
who, on the judge’s unchallenged findings, handled a
difficult situation with tact and sensitivity.
But no explanation has been provided as to why the council did not
execute the EPO itself. Ms O’Brien had
attempted to do just that during normal working hours on 25 September. She was rightly concerned about the safety of
the child. At about 18.00 hrs, she
contacted the EDT and asked them to arrange for the foster parents to be
alerted. There is no evidence that, if
asked to execute the EPO, the EDT would not have been able to do so within a
short time. Even in these times of
straitened financial circumstances, it is reasonable to suppose that a large
local authority such as the council has sufficient resources to execute an EPO
out of hours in a situation of emergency.
[45] In my judgment, when PS Jones telephoned
the EDT, he should have asked them to come to the Langleys’ home to execute the
EPO. Instead, it seems that he
telephoned them to ask for their views about whether Callum should be removed,
so that he could take these into account when making his own independent
judgment as to whether to remove the child under s 46. In my view, when an officer is aware that an
EPO is in force, this is the wrong approach.
In the first instance, he should have asked the EDT whether they could
execute the EPO. If their response was
that they could not execute it for some time, he might well have been justified
in removing Callum under s 46. Whether
he would have been so justified would have depended on the time that would be
likely to pass before the arrival of the EDT and whether it was practicable for
him in the meantime to prevent Mr Langley from removing Callum from the house,
if necessary with the assistance of his fellow officers.
[46] Mr Wells submits that PS Jones was merely
asked by Ms O’Brien to find Callum.
Having found the child, he formed the view that there was a risk of
significant harm. In reaching this
conclusion, he took into account the EPO, the views of the EDT and his own
assessment of the situation. He
reasonably concluded that the threshold criterion for a s 46 removal existed,
so that the removal was lawful. But for
the reasons I have given, this is the wrong approach where an officer is aware
that an EPO is in force. PS Jones was in
error in failing to ask himself whether there were compelling reasons why he
should invoke s 46 rather than leave it to the council to execute the EPO.
[47] I would therefore hold that the removal
of Callum was unlawful.
LIABILITY OF THE CHIEF CONSTABLE FOR THE REMOVAL OF
CALLUM
[48] I do not understand Mr Wells to submit
that, if the removal of Callum was unlawful, the judge was wrong to find that
the chief constable was liable to Callum in assault and false
imprisonment. The judge rejected the
claim by the parents and Callum for breach of art 8. I have set out his reasons at [23], above.
[49] It is submitted by Mr Thacker on behalf
of the family that the judge erred in rejecting the human rights claim. His argument could hardly be simpler. Article 8 of the convention provides:
‘1. Everyone has the
right to respect for his private and family life, his home and his
correspondence.
2. There shall be no
interference by a public authority with the exercise of this right except such
as is in accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime,
215
for the protection of
health or morals, or for the protection of the rights and freedoms of others.’
[50] Mr Thacker submits that the removal was
an interference by a public authority with the parents’ and Callum’s right to
respect for family life. It was unlawful
and therefore not ‘in accordance with the law’.
The interference cannot, therefore, be justified under art 8(2).
[51] In response, Mr Wells submits that, if a
breach of human rights is accidental or inadvertent (as he contends it was in
the present case), then it would not be right to penalise the public authority,
since it has acted in good faith and where it has acted proportionately. He relies on the observations of Lord
Hoffmann in Wainwright v Home Office [2003] UKHL 53 at [51], [2003] 4
All ER 969 at [51], [2004] 2 AC 406:
‘Article 8 is more
difficult. Buxton LJ thought ([2003] 3
All ER 943 at [62], [2002] QB 1334 at [62]), that the Wainwrights would have
had a strong case for relief under s 7 if the 1998 Act had been in force. Speaking for myself, I am not so sure. Although art 8 guarantees a right of privacy,
I do not think that it treats that right as having been invaded and requiring a
remedy in damages, irrespective of whether the defendant acted intentionally,
negligently or accidentally. It is one
thing to wander carelessly into the wrong hotel bedroom and another to hide in
the wardrobe to take photographs.
Article 8 may justify a monetary remedy for an intentional invasion of
privacy by a public authority, even if no damage is suffered other than
distress for which damages are not ordinarily recoverable. It does not follow that a merely negligent
act should, contrary to general principle, give rise to a claim for damages for
distress because it affects privacy rather than some other interest like bodily
safety: compare Hicks v Chief Constable of the South Yorkshire Police
[1992] 2 All ER 65.’
[52] Wainwright v Home Office
was a pre-1998 Act case. These
observations are, therefore, obiter dicta.
At [63], Lord Scott of Foscote left open the question whether conduct
inflicted on the claimants in that case would constitute a breach of art
8. Mr Wells was unable to cite any
domestic or Strasbourg authority to support the broad proposition that an act
which interferes with a person’s family life and which is unlawful according to
our domestic law, may nevertheless not be a violation of that person’s art 8
rights because the unlawful act was accidental or inadvertent. If the removal of Callum to the care of the
foster parents could lawfully have been effected by the council’s EDT executing
the EPO, then it is tempting to characterise his removal by PS Jones as a mere
technical error of law. In my view, it
was more than a mere technical error. It
is for good reason that Parliament has accorded primacy to s 44. The police undoubtedly have a role to play in
protecting children from the risk of significant harm. But for the reasons that I have given, they
should not carry out this sensitive and difficult work where they know that an
EPO is in force unless there are compelling reasons for them to do so. Whenever possible, this work should be done
by social workers or other persons who have the skills and experience to do
it. Even if Lord Hoffmann’s observations
are correct, there is a material difference between merely negligent acts of
the type to which he refers, and the unlawful removal by a police officer of a
child from his family, even where (as in the present case) the removal was
216
made by an officer who acted in good faith in
circumstances which justified the removal of the child by the council’s social
workers to the very foster carers into whose care he removed them.
[53] In my judgment, the judge was wrong to
reject the claim for breach of art 8. If
the act of PS Jones was unlawful and therefore not ‘in accordance with the
law’, it was no answer to the claim to find that the response of PS Jones was
not ‘disproportionate to the situation as he found it’.
[54] I would therefore allow the appeal of the
first three claimants against the judge’s dismissal of their claim under art
8. In these circumstances, it is not
necessary for me to deal with the third ground of appeal and decide whether the
judge was right to hold that PS Jones was not purporting to remove Callum under
s 46.
THE LIABILITY OF THE COUNCIL FOR THE REMOVAL OF
CALLUM
[55] The judge held that the council was
liable to the parents and Callum for assault and false imprisonment as well as
for breach of their art 8 rights. He
said that the council was at fault in obtaining the EPO and in procuring the
removal of Callum by PS Jones.
OBTAINING THE EPO
[56] It is convenient to deal here with all
the arguments relating to the lawfulness of obtaining the EPO, including those
which specifically concern James and Ryan.
The judge held that the council should not have sought the EPO at
all. His reasons were that (i) they
should have obtained a PSO; (ii) the danger to the children was not
sufficiently urgent to justify the making of an EPO, and (iii) the factual
basis on which the application was presented to the court was incorrect: Mr
Langley was not intending to drive from Derby to Liverpool on 27 September,
since he had already returned to Liverpool by the time the application was
made.
[57] The judge said that to obtain an EPO when
a PSO had not been considered, let alone tried, was a disproportionate response
by the council to the situation. A PSO
requiring Mr Langley to stop driving his children might have succeeded where
assurances given to social services had failed.
A PSO is far less intrusive and disruptive of family life than an EPO.
[58] It is important to keep in mind that the
function of the court in deciding whether the council’s decision to seek an EPO
was proportionate is one of review. But
it is not a full-blown review on the merits.
As Lord Steyn said in R (on the application of Daly) v
Secretary of State for the Home Dept [2001] UKHL 26 at [28], [2001] 3 All
ER 433 at [28], [2001] 1 AC 532: ‘the respective roles of judges and
administrators are fundamentally distinct and will remain so …’ In appropriate cases, judges should show some
deference to decision makers: see per Lord Walker of Gestingthorpe in R (on
the application of ProLife Alliance) v British Broadcasting Corp
[2003] UKHL 23 at [132], [2003] 2 All ER 977 at [132], [2004] 1 AC 185. At [138], Lord Walker approved as a useful
summary the following passage in the third edition of Michael Fordham
Judicial Review Handbook (2001) para 58.2:
‘Hand in hand with
proportionality principles is a concept of “latitude” which recognises that the
Court does not become the primary decision-maker on matters of policy, judgment
and discretion, so that public
217
authorities should be
left with room to make legitimate choices.
The width of the latitude (and the intensity of review which it
dictates) can change, depending on the context and circumstances. In other words, proportionality is a
“flexi-principle”. The latitude connotes
the appropriate degree of deference by court to public body. In the Strasbourg (ECHR) jurisprudence the
concept of latitude (called “the margin of appreciation”) comes with a health
warning: it has a second super-added deference (international court to domestic
body) inapt to domestic judicial review (domestic court to domestic body). This means that Human Rights Act review needs
its own distinct concept of latitude (the “discretionary area of
judgment”). The need for deference
should not be overstated. It remains the
role and responsibility of the Court to decide whether, in its judgment, the
requirement of proportionality is satisfied.’
[59] In Venema v Netherlands [2003] 1
FCR 153, the European Court of Human Rights (ECtHR) considered whether a local
Child Welfare Board had acted in compliance with art 8 in obtaining a without
notice supervision order, which had the effect of removing a child from the
care of her parents. In an important
passage, the court said this ([2003] 1 FCR 153 at 169–170):
‘90. Against this
background, the court recalls that its role is not to substitute itself for the
domestic authorities in the exercise of their responsibilities in the field of
the compulsory taking of children into public care, but rather to review under
the Convention the decisions that those authorities have taken in the exercise
of their power of appreciation. The
margin of appreciation so to be accorded to the competent national authorities
will vary in the light of the nature of the issues and the seriousness of the
interests at stake. While national
authorities enjoy a wide margin of appreciation in assessing the necessity of
taking a child into care, in particular where an emergency situation arises,
the court must still be satisfied in the circumstances of the case that there
existed circumstances justifying such a measure. In this respect, it must have particular
regard to whether, in the light of the case as a whole, the reasons adduced to
justify the measure were relevant and sufficient such as to allow the
conclusion to be drawn that it was “necessary in a democratic society” (see [P
v UK [2002] 3 FCR 1 at 29 (paras 114–116)]).
91. The court reiterates
that whilst art 8 contains no explicit procedural requirements, the
decision-making process involved in measures of interference must be fair and
such as to afford due respect to the interests safeguarded by art 8 of the
Convention. The applicable principle has
been stated as follows ([B v UK (1987) 10 EHRR 87 at para 65]):
“In the Court’s view, what … has to be determined is
whether, having regard to the particular circumstances of the case and notably
the serious nature of the decisions to be taken, the parents have been involved
in the decision-making process, seen as a whole, to a degree sufficient to
provide them with the requisite protection of their interests. If they have not, there will have been a
failure to respect their family life and the interference resulting from the
decision will not be capable of being
218
regarded as ‘necessary’ within the meaning of Article
8.”
92. It is essential that
a parent be placed in a position where he or she may obtain access to
information which is relied on by the authorities in taking measures of
protective care or in taking decisions relevant to the care and custody of a
child. Otherwise, the parent will be
unable to participate effectively in the decision-making process or put forward
in a fair or adequate manner those matters militating in favour of his or her
ability to provide the child with proper care and protection (see [McMichael
v UK [1995] 2 FCR 718 at 740 (para 92)]; and [TP v UK [2001] 2 FCR
289 at 311 (para 73)]).
93. The court accepts
that when action has to be taken to protect a child in an emergency, it may not
always be possible, because of the urgency of the situation, to associate in
the decision-making process those having custody of the child. Nor, as the government point out, may it even
be desirable, even if possible, to do so if those having custody of the child
are seen as the source of an immediate threat to the child, since giving them
prior warning would be liable to deprive the measure of its effectiveness. The court must however be satisfied that the
national authorities were entitled to consider that there existed circumstances
justifying the abrupt removal of the child from the care of its parents without
any prior contact or consultation. In
particular, it is for the respondent state to establish that a careful
assessment of the impact of the proposed care measure on the parents and the
child, as well as of the possible alternatives to the removal of the child from
its family, was carried out prior to the implementation of a care measure (see
[K v Finland [2001] 2 FCR 673 at 704 (para 166)]).’
[60] Although this passage is concerned with
the margin of appreciation that should be accorded by the ECtHR to national
courts, it seems to me that there is much here that has application when the
national court is reviewing the decision of an authority to seek to remove a
child from those who have custody of him or her. An authority such as the council in the present
case is better equipped than the court to judge how urgent a situation is, and
whether in all the circumstances removal of the child is necessary. In my view, therefore, persons in the
position of Ms O’Brien and Ms McGaw should be allowed some latitude by the
court when reviewing their decisions in these difficult cases where they have
reasonable cause to believe that a child is at risk of significant harm. Of course, the court should never lose sight
of the fact that the removal of children from those who have custody of them is
an extreme form of interference with family life and calls for compelling
justification.
[61] They were clearly justified in taking the
view that Mr Langley had shown himself to be a real threat to the safety of his
children. Assurances had been given
fairly frequently and broken equally frequently. The assessments of Ms O’Brien and Ms McGaw
were that the only way to protect these children was to take them into
care. Ms McGaw admitted in evidence that
she did not give consideration to obtaining a PSO. But she said that her opinion at the time was
that nothing less than an EPO would have sufficed to protect the children. If she had applied her mind specifically to a
PSO, she would have rejected it as an option:
219
‘a PSO would not have
stopped that journey taking place (sc the return from Derby to Liverpool) or
stopped Callum being brought back. We had to have an order that took Callum and
the other children out of that situation for a period of time to try and engage
the family again …’
[62] Mr Thacker submits that, if Mr Langley’s
driving gave rise to an emergency need to protect the children, it is strange
that the council did not seek an EPO in relation to baby Rebecca as well. He also makes the point that there was no
emergency in relation to James and Ryan, since the council believed that these
two children would be safe at the Derby school until 27 September. These two features of the case, he submits,
cast considerable doubt on the existence of a true emergency.
[63] In my view, the judge was wrong to hold
that the decision to seek an EPO was in breach of art 8. The critical issue is whether the decision to
seek an EPO rather than a PSO was a disproportionate response by Ms O’Brien and
Ms McGaw. Against the background of
previous failed attempts to persuade Mr Langley to behave responsibly and
desist from driving his children, and having regard to the real threat to their
safety that his driving represented, the decision to seek an EPO was in my view
a reasonable and proportionate response.
In reaching this conclusion, I have accorded a measure of deference or
latitude to the judgment of Mr O’Brien and Ms McGaw. The fact that, inexplicably, the council did
not include Rebecca in the EPO does not fatally undermine the justification for
seeking an EPO. Similarly, the fact that
on 25 September there was no immediate threat to the safety of James and Ryan
(because they were safe in their school) is not sufficient to impugn the
EPO. The decision to obtain the EPO on
25 September did not commit the council to execute it until after the two older
boys had completed their assessments in Derby.
Once these had been completed, the danger to the two boys would be
immediate and real.
[64] Finally, I should mention the fact that
Mr Thacker criticises the council for failing to consult the parents before
obtaining the EPO. It is clear from
Venema v Netherlands that it is important that, so far as possible, parents
should be consulted as part of the decision-making process. But Ms McGaw explained that the social
services had tried to find the parents before applying to the court, and had
been unable to do so. In view of the
emergency, particularly in relation to Callum, I do not consider that the
failure to consult the parents before the EPO was obtained renders the decision
to obtain the EPO unlawful.
EXECUTING THE EPO IN REMOVING CALLUM
[65] There can be no doubt that PS Jones did
not execute the EPO. He had no authority
to do so. He was not the applicant who
had obtained the EPO. Nor did he purport
to execute the EPO on behalf of the council.
He said that he exercised his own judgment as to whether to remove
Callum, and, as I understand it, there was no challenge to this part of his
evidence. Ms O’Brien did not suggest in
her witness statement that she had asked him to execute the EPO: she had merely
made him aware of the situation ie that there was no one at the family
home. In other words, she asked him to
find the child.
[66] But the council undoubtedly played a major
part in securing the removal of Callum by PS Jones. In particular, when he telephoned the EDT to
inform them that he had found the child and to ask them what they wanted to do,
they
220
should not have said that they wanted Callum to be
taken into care, thereby inviting PS Jones to remove him without more ado. Rather, they should have told the officer to
ensure that Callum remained in the house until one or more council social
workers could come to execute the EPO.
In my judgment, the council’s failure to do this contributed to the
unlawful removal of Callum by PS Jones.
The judge found that the council had acted unlawfully in ‘ordering
Callum’s removal’. In my view, it is
difficult to characterise what the EDT representative said to PS Jones as an ‘order’,
but for the reasons I have given, I agree with the judge’s conclusion that the
council is liable to Mr and Mrs Langley as well as Callum for his removal.
THE LIABILITY OF THE COUNCIL FOR THE REMOVAL OF JAMES
AND RYAN
Obtaining the EPO
[67] I refer to paras [57]–[65], above.
Executing the EPO in removing James and Ryan
[68] The council were entitled to execute the
EPO as soon as the boys left the school.
The judge considered that the removal of James and Ryan was unlawful
because there was no emergency. Ms McGaw
explained why in the judgment of Ms O’Brien and herself there was an emergency
(see [61], above). Allowing appropriate
deference or latitude to their judgment, I respectfully disagree with the
judge. Ms McGaw said that this was a
‘volatile’ family. A blind man who
persistently drives is a danger to himself and everyone affected by his
driving. Just as the social services
were justified in obtaining an EPO, so they were justified in executing it.
[69] During the course of his cross-examination
of Ms McGaw, Mr Thacker suggested that the social services had failed
sufficiently to consult the parents and to explain to them why they had
obtained the EPO and why they were intending to execute it. I have summarised the evidence at [11],
above. I reject the submission that
there were failures to consult and explain which, having regard to the guidance
given in Venema v Netherlands (see [59], above), justify a finding that
there was a breach of art 8 in relation to the removal of James and Ryan. The first point to note is that this was not
the way in which the art 8 case was pleaded.
But secondly and in any event, Ms McGaw provided a complete answer. She did explain to Mrs Langley why the EPO
had been obtained, and in the circumstances it was obvious why, having obtained
the EPO, the council intended to execute it.
And an interpreter was present throughout the meeting on the morning of
26 September.
CONCLUSION
[70] For the reasons that I have given, I
would dismiss the chief constable’s appeal.
As I have said, no blame attaches to PS Jones personally: he was placed
in a difficult position by the EDT of the council. The appeal of the first three claimants
against the dismissal of their claims for breach of art 8 should be
allowed. I would also dismiss the
council’s appeal against the findings of liability in relation to the removal
of Callum, but allow it in relation to the removal of James and Ryan. But since I consider that the EPO was
justified in this case and that it was appropriate to execute it to remove
Callum on 25 September, it is difficult to see on what basis an award of
substantial damages could properly be
221
made because the removal was effected by the chief
constable, and not the council. The
issue of damages is not, however, before this court.
[71] Finally, I have not found it necessary to
deal with the claimants’ appeal against the judge’s dismissal of their claim in
negligence against the council. Mr
Thacker acknowledged that in substance the claim in negligence added nothing to
the claim under art 8. I should also
mention the council’s complaint about the judge’s refusal to adjourn the case
to enable Ms O’Brien to give evidence.
This was a case management decision and a matter for the judge’s
discretion. In my judgment, this was a
hopeless ground of appeal which Mr Prior rightly did not pursue with any
vigour.
LLOYD LJ.
[72] I agree.
THORPE LJ.
[73] I have had the advantage of reading in
draft the judgment of Dyson LJ, and I agree with all his conclusions. I add a brief judgment of my own to provide
the perspective of a family lawyer.
[74] In the county court it was rightly
perceived that the case should be listed before a specialist and the trial was
directed to the list of the designated family judge. Unfortunately other arrangements had to be
made at a late stage. Thus the case was
listed before a deputy. We were informed
that Judge Morgan is a retired circuit judge.
Although a well-respected judge in the civil law field he had never been
authorised to sit to hear public law cases under the Children Act 1989. Had the case been listed before the
designated family judge, as originally intended, I am confident that there
would have been a different outcome.
[75] In so saying I specify Judge Morgan’s
conclusion that the local authority breached the art 8 rights of the family by
seeking an emergency protection order rather than a prohibited steps
order. That conclusion strikes me, as a
family lawyer, as astonishing. I would
thus reject that conclusion more robustly than Dyson LJ has done in paras
[56]–[64] of his judgment by reference to authority, particularly the apt case
of Venema v Netherlands [2003] 1 FCR 153.
[76] In the first place it is Pts IV and V of
the Children Act 1989 that provides the state, through the agency of the local
authority, with power to intervene in the life of a family. Practitioners, whether in the legal
department or the social services department of the local authority, will
naturally consider the powers provided by Pts IV and V, and the limitations on
those powers, when considering how and to what degree they should invade the
territory of the family in order to protect its children. If there is no imminent danger the
appropriate application is for an interim care order. If there is greater urgency the appropriate
remedy is an emergency protection order.
It is to be emphasised that even in an emergency the local authority
must apply in the family proceedings court for the order and prove the need for
the order to the satisfaction of the court.
This is a potent check on the local authority’s powers of intervention
in emergency. In the present case I
emphasise that the family proceedings court was satisfied that the local
authority’s proposed intervention by way of an emergency protection order was
appropriate and proportionate.
[77] The power to grant a prohibited steps
order is to be found in Pt II of the 1989 Act.
It is one of a range of orders defined in s 8. It was a new label attached to the familiar remedy
of an injunction prohibiting an action.
It is a private law
222
remedy required to prevent threatened or repeated
misconduct, generally in a warring family.
I have yet to encounter a case in which a local authority has decided
that it can achieve the end that its child protection duties require by
applying for a prohibited steps order.
In my judgment the submission that in the present case their failure so
to do amounted to a breach of the family’s convention rights (see the European
Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as
set out in Sch 1 to the Human Rights Act 1998) and ss 1–3 of the 1998 Act) is
mere advocacy. On the facts of this case
it should have been seen as such and rejected.
Thus I would reverse the judge on this question without reference to
authority establishing the extent of the margin of appreciation. Dyson LJ has already emphasised how a mere
injunction would have added nothing to steps already taken by other authorities
in an endeavour to prevent the father endangering himself and others by
driving.
[78] The conclusions that I have expressed in
the previous paragraph are supported by the decision of this court in the case
of Nottinghamshire CC v P, Re P (minors) (local
authority: prohibited steps order) [1993] 3 All ER 815,
[1994] Fam 18. The 1989 Act was then a
relative novelty and the decision established the boundary between powers
granted to local authorities under Pt IV of the Act and their ability to resort
to s 8 orders by way of supplement. The
point then before the court was directly covered by s 9(2) and (5) of the 1989
Act but the following statement of principle ([1993] 3 All ER 815 at 824–825,
[1994] Fam 18 at 39) is of general application:
‘A wider question arises
as to policy. We consider that this court
should make it clear that the route chosen by the local authority in this case
was wholly inappropriate. In cases where
children are found to be at risk of suffering significant harm within in the
meaning of s 31 of the 1989 Act a clear duty arises on the part of local
authorities to take steps to protect them.
In such circumstances a local authority is required to assume
responsibility and to intervene in the family arrangements in order to protect
the child. Part IV specifically provides
them with wide powers and a wide discretion.
As already pointed out the Act envisages that local authorities may
place children with their parents even though they may have a care order under
s 31.
A supervision order may
be viewed as being less draconian but it gives the local authority a wide
discretion as to how to deal with children and with the family. A prohibited steps order would not afford the
local authority any authority as to how it might deal with the children. There may be situations, for example where a
child is accommodated by a local authority, where it would be appropriate to
seek a prohibited steps order for some particular purpose. However, it could not in any circumstances be
regarded as providing a substitute for an order under Pt IV of the 1989 Act.’
[79] It follows that in my judgment all that
was done by the authorities was perfectly legitimate until the telephone
conversation between DS Jones and the emergency duty team and its
consequence. I agree with my lord that
the call and its consequence put both authorities in breach of the family’s
Convention rights. In my judgment the
responsibility for that regrettable development lies with the local
authority. The social worker should have
perceived that she could involve the police to locate the child but not to
execute the emergency protection order.
223
In the circumstances she should have appreciated that
the obvious and desirable consequence of her visit to the police station was
that the police would indeed locate the child.
Accordingly she should have put in place arrangements for the execution
of the emergency protection order as soon as the police succeeded in their
given task. To the same effect, the
emergency duty team, once the police reported their success, should have
themselves executed the emergency protection order. They could not lawfully delegate that task to
the police: ss 45(12) and 48(9) of the 1989 Act in combination have that
effect. Thus I have considerable
sympathy for the position of the chief constable who finds himself in unwitting
breach of convention rights having, through DS Jones, done his best to support
the local authority in the discharge of its duties. Child protection services depend vitally on
interdisciplinary collaboration if they are to be fully effective. That was all that the police were, in my
judgment, seeking to provide.
The authority’s appeal allowed in part.
KUJUA STYLE TAMU ZA KUMKUNA MSICHANA AKAKUPENDA DAIMA ASIKUSALITI BONYEZA HAPA CHINI
0 comments: