England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
FROM QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Mr. Justice Burton

		QBCOF/1999/0799/C Royal Courts of Justice Strand, London, WC2A 2LL
		30 June 2000

PETER GIBSON L.J.:

1. These appeals raise questions of some general interest to Fire Brigades and those whom they employ, affecting as they do pension and other rights under the statutory pension scheme for firemen which was established under s. 26 of the Fire Services Act 1947 ("the 1947 Act") and is now contained in the Firemen's Pension Scheme Order 1992 ("the Scheme"). It is an appeal by the West Yorkshire Fire and Civil Defence Authority ("the Authority") from the orders of Burton J. on 4 May 1999. Thereby on the applications for judicial review made by Stuart McCalman and John Lockwood, he granted the applicants declarations as to the meaning and effect of the Scheme. The appeal is brought with the leave of the single Lord Justice.
2. The Authority were the employers of Mr. McCalman and Mr. Lockwood. Each was employed as a whole-time operational fireman. In the course of his work each suffered injuries in the form of a bad back. Mr. Lockwood was found by the Authority's medical expert in October 1995 to be "permanently unfit to resume full operational duties for the foreseeable future". Of Mr. McCalman it was said by a consultant rheumatologist on 8 July 1997 that it was extremely unlikely that he would be able to return to his job as a fireman at any point in the future. At the hearing before the judge the Authority accepted that Mr. Lockwood as a result of his injuries was permanently unfit to act as an operational firefighter, but Mr. McCalman's like claim was disputed. The judge resolved the dispute by holding that Mr. McCalman was also permanently unfit for firefighting duties and that there was no differentiation to be made between the two applicants. That conclusion is not disputed on this appeal.
3. Each of the applicants claimed that, by reason of his permanent disablement from carrying out his duties as a firefighter, he should have been retired, thus entitling him to a pension pursuant to the Scheme. But on receiving medical advice that each of them was capable of performing light duties the Authority sought to retain them in employment to carry out non-operational duties. Each received peremptory instructions to report for non-operational work, coupled with threats as to his future employment if he did not. Mr. Lockwood was transferred under protest to such duties on 16 December 1996, saying that this was without prejudice to his contention that he should be retired. Mr. McCalman was instructed to report for duty on 21 October 1996 but refused to obey such instruction. He was dismissed on 14 February 1997 for his disobedience to an order.
4. Under the practice which operated until 1994, both applicants would have been regarded as qualifying for an ill-health award under the Scheme and would have retired with the benefit of such award. But the Authority then changed their practice, taking the view that in circumstances where a fireman can no longer carry out operational duties as a firefighter, but is fit enough to perform non-operational duties, he can be required so to perform and to continue his employment, remaining a member of the Scheme.
5. I must now set out the statutory provisions relating to the Scheme.
6. By s. 1(1) of the Fire Services Act 1947 a duty is imposed on every fire authority to make provision for fire-fighting purposes (defined in s. 38(1) as the extinction of fires and the protection of life and property in case of fire). In particular the fire authority are to secure the services for their area of a fire brigade and equipment, the training of the members of the brigade and efficient arrangements for obtaining information required for fire-fighting purposes, for ensuring that reasonable steps are taken to prevent or mitigate damage to property resulting from measures taken to deal with fires, and for giving fire prevention advice.
7. S. 19(1) provides that the establishment of members of a fire brigade of different descriptions and ranks to be maintained by a fire authority is to be determined in accordance with the provisions of a scheme made by the fire authority under s. 19. By s. 19(3) every fire authority shall notify the Secretary of State each year of the establishment scheme in force in their area. S. 19(4) (so far as material) states:

"A fire authority shall not vary the establishment scheme for their area by .... reducing the members of -

(a) whole-time members of any rank of the fire brigade to which the scheme relates, other than members whose duties do not normally include fire-fighting,

....

except with the approval of the Secretary of State."

Thus if a decision by a fire authority has the effect of reducing the number of those of the whole-time members of the brigade whose duties normally include fire-fighting below the number prescribed in the establishment scheme, it would be unlawful unless the prior approval of the Secretary of State was obtained.

8. S. 26(1) provides for the Scheme to be brought into operation by the Secretary of State. By s. 26(2) the Scheme may include provisions for defining the classes of persons employed as members of fire brigades and in particular for excluding persons not wholly or permanently so employed or who are so employed on such ancillary duties as may be specified in the Scheme and for treating , for all or any of the purposes of the Scheme, employment on duties connected with the provision of fire services as if it were employment as a member of a fire brigade maintained pursuant to the Act.
9. The 1947 Act was amended by s. 8 Fire Services Act 1959 to allow the Scheme to include provision as to the times at which and the circumstances in which members of fire brigades are or may be required to retire otherwise than on the ground of misconduct.
10. The scheme is not a funded pension scheme. No fire authority is required to contribute directly to it. But a "regular firefighter" within the meaning of the Scheme is required to pay contributions at the rate of 1p a week less than 11% of his pensionable pay unless he elects otherwise (Rules G 2(1)and 3). If he so elects, the Scheme continues to apply to him but the period during which he is paying no contributions does not count as pensionable service. The contribution rate is notably high. It can be contrasted with the 6% contribution rate which other employees of the fire authority, such as control staff and non-operational staff, pay to the Local Government Pension Scheme. It is not in dispute that the Scheme operates not only as a pension scheme but also as an insurance scheme. Its benefits are generous. The generosity of its benefits reflects both the significant monetary contributions made by the regular firefighters and the fact that they are engaged in a hazardous occupation in serving the public.
11. In Part 1 of Sch. 1 to the Scheme "regular firefighter" is defined in relation to any time before 1 March 1992 (when the Scheme came into force) as a regular fireman as defined in Article 2 of the predecessor scheme in the Firemen's Pension Scheme Order 1973 ("the 1973 Scheme"). (There "regular fireman" was defined as "a whole-time member of a brigade who was appointed on terms under which he is or may be required to engage in fire-fighting, not being a person whose employment is temporary only".) In relation to any time after 29 February 1992 "regular firefighter" means "a whole-time member of a brigade appointed on terms under which he is or may be required to engage in fire-fighting whose appointment is not a temporary one."
12. In the Scheme itself, by Rule A3 (headed "Exclusive application to regular firefighters"), so far as material:

"(1) .... this Scheme applies in relation to regular firefighters and their spouses and dependants to the exclusion of pension provision under any enactment other than section 26 of [the 1947 Act] and the Social Security Act 1975.

(2) In paragraph (1) "pension provision" means any provision for the payment of a pension allowance or gratuity, on cessation of employment or on death, in respect of employment as a regular firefighter."

13. Rule A10 defines disablement:

"(1) References in this Scheme to a person being permanently disabled are references to his being disabled at the time when the question arises for decision and to his disablement being at that time likely to be permanent."

By para (2) "disablement" means "incapacity, occasioned by infirmity of mind or body, for the performance of duty, except that in relation to a child it means incapacity, so occasioned, to earn a living."

14. Rule A13 provides for the compulsory retirement of every whole-time member of a brigade appointed on terms under which he is or may be required to engage in fire-fighting on attaining 60 if holding the rank of assistant divisional officer or higher or on attaining 55 if holding the rank of station officer or lower. Rule A14 provides that a whole-time member of a brigade who was appointed on terms under which he is or may be required to engage in fire-fighting and has attained 50 and has 25 years pensionable service "may be required by the fire authority to retire" on the ground of brigade efficiency.
15. Rule A15 (1) provides (so far as is material) as follows:

"(1) .... a regular firefighter may be required by the fire authority to retire on the date on which the authority determine that he ought to retire on the ground that he is permanently disabled."

16. Rule B3 provides for ill-health awards:

"(1) This rule applies .... to a regular firefighter who is required to retire under rule A15 ....

(2) A person to whom this rule applies becomes entitled on retiring -

(a) .... to an ill health pension ...., and

(b) .... to an ill-health gratuity ...."

Both Mr. McCalman and Mr. Lockwood claim ill-health awards. That the ill-health award is payable only where retirement is required by the fire authority is a new provision not found in the 1973 Scheme.

17. Rule B4 provides for injury awards:

"(1) This rule applies to a regular firefighter who has retired and is permanently disabled if the infirmity was occasioned by a qualifying injury.

(2) A person to whom this rule applies becomes entitled on retiring -

(a) to a gratuity, and

(b) .... to an injury pension,

both calculated in accordance with Part V of Schedule 2."

Part V contains a table which provides for injury awards varying in accordance with four categories of disablement expressed in percentage terms of which the lowest was 25% or less disablement. Again both Mr. McCalman and Mr. Lockwood claim injury awards on the basis that they suffered qualifying injuries (defined in Rule A9 as "an injury received by a person without his own default in the execution of his duties as a regular firefighter").

18. By Part H of the Scheme provision was made for the determination of questions and appeals. By rule H1:

"(1) The question whether a person is entitled to any and if so what awards shall be determined in the first instance by the fire authority."

Other paragraphs of rule H1 provide that before deciding that question or any question such as whether a person has been disabled and whether any disablement is likely to be permanent, the fire authority are to obtain and consider a qualified medical practitioner's opinion. Rule H2 as amended provides for an appeal to a Board of medical referees and Rule H3 provides that where a person claims entitlement to an award or payment in respect of an award and applies to a fire authority, they shall reconsider the claim and if the claimant is dissatisfied with the authority's determination an appeal lies to the Crown Court. By rule H3(2) the Crown Court has power to make such order or declaration in the matter as appears to it to be just; but rule H3(3)(a) states that that does not authorise the Crown Court to make an order or declaration controlling the exercise of any discretion vested in the fire authority under the Scheme (with an immaterial exception).

19. Rule K1 is in this form (so far as material):

"(1) As long as a person -

(a) is in receipt of an ill-health pension, and

(b) would not, if he had continued to serve as a regular firefighter instead of retiring with an ill-health pension, have become entitled to retire with an ordinary pension, and

(c) if he had continued so to serve, could not have been required to retire on account of age,

the fire authority may, if they wish to exercise the powers conferred by this rule, consider, at such intervals as they in their discretion think proper, whether he has become capable of performing the duties of a regular firefighter.

....

(3) If on any such consideration it is found that he has become capable of performing the duties of a regular firefighter, the authority may terminate the unsecured portion of his ill-health pension ...."

20. Rule K2 allows the reassessment of an injury pension if the fire authority consider that the degree of disablement of the recipient of the pension has substantially altered.
21. Disciplinary regulations have been made pursuant to the 1947 Act. They apply to "all members of a fire brigade, including persons whose employment is temporary only, who are appointed on terms under which they are or may be required to engage in fire-fighting or who are engaged in duties in connection with the reception, transmission and recording of calls for the assistance of a brigade, and with the transmission of instructions regarding the provision of such assistance by a brigade" (Reg. 3 The Fire Services (Discipline) Regulations 1985 ("the Discipline Regulations")). They do not apply to non-operational staff. The Discipline Regulations lay down a strict disciplinary code under which carelessness or neglect is a disciplinary offence and punishable.
22. Other regulations made pursuant to the 1947 Act govern appointments as and promotions of firemen. By The Fire Services (Appointment and Promotion) Regulations 1978 as amended ("the Appointment Regulations"), qualifications are laid down for promotion to or appointment in the rank of fireman in a brigade "in the case of a person who is to serve therein as a whole-time member thereof on terms under which he is or may be required to engage in firefighting" (see Reg. 5(1)). They indicate clearly that such a person must be physically fit and strong. Excluded from promotion to a rank higher than that of fireman are those serving in the brigade on terms under which he is solely engaged on control room duties (as defined in Reg. 2(1)(d)) and eligibility for promotion depends (among other things) on being a member of a brigade with a specified number of years of operational service (Regs. 6 and 7). Such service is defined as meaning, in relation to any person, "whole-time service as a member of a brigade .... during any period in which that person in the course of his duty was under an obligation to engage in fire-fighting" (Reg. 2(1)(f)). Only firefighters qualify for promotion.
23. I can state quite shortly the contractual position as between the Authority and each of Mr. Lockwood and Mr. McCalman. Each received a written offer of appointment which each accepted and each was supplied with written particulars of his appointment as a whole-time operational fireman, as well as standard terms and conditions. These included the express incorporation of the Scheme of Conditions of Service (known as "the Grey Book") negotiated by the National Joint Council for Local Authorities Fire Brigades ("the NJC"). They also included the requirements "to carry out all appropriate training and duties to enable you to fulfil your operational obligations, including the wearing of breathing apparatus and the driving of fire appliances and ancillary vehicles" and, in the interests of personal safety particularly with regard to the wearing of breathing apparatus, not to wear a beard or to have long hair. They further included an undertaking by each fireman to be medically examined as required to determine that his physical fitness is such as to enable his full range of appropriate duties to be carried out.
24. In the Grey Book para. 1 sets out the ranks of members of a brigade in three categories: (1) operational staff (including firefighters and leading firefighters); (2) control staff; (3) non-operational staff. But in section IX a member of a fire brigade is defined as being a person to whom the Disciplinary Regulations apply, and as has been noted they do not apply to non-operational staff. Para. 3 states that the principal duties of the qualified firefighter are those described in the document "The Qualified Fireman's Job" ("the QFJ") issued by the NJC in May 1977. It also refers to other duties compatible with the skills of the firefighter and the nature of the fire service. Clear distinctions are made in the Grey Book between operational staff on the one hand and control room staff and non-operational staff on the other. They even include different regimes for sick leave.
25. In the QFJ it is pointed out that every fire service officer starts his career in the rank of fireman. It continues:

"The fully qualified Fireman is a skilled technician, occupied in using the most modern equipment, methods and techniques to undertake the full range of fire-fighting, rescue, road accidents, other emergencies and fire prevention work with which the Fire Service is called upon to deal.

His working life and training is geared to responding at top speed to emergency calls ....

In order for him to function effectively in emergencies, a Fireman's pre-eminent characteristics must be those of courage; general physical strength and the capacity for rapid, intense and substantial effort ...."

The QFJ also refers to the fireman's important role, outside attendances at emergencies, in the prevention of fire through the inspection of premises and equipment external to the fire station. It mentions that a fireman spends part of every normal day on training and that the provision of a 24-hour seven-day week service requires the fireman to work a shift system.

26. It is not in dispute that the contracts of employment of Mr. Lockwood and Mr. McCalman did not include any flexibility clause which might have allowed the Authority to change their job descriptions. Mr. Lockwood continues to be paid a salary for a person in the rank, which he attained before his injury, of Leading Firefighter and to make contributions to the Scheme, but he does not do shift work and earns no overtime. In his second affidavit he describes the "light duties" which he has been required to do in this way:

"I have been transferred from clerical duties to fire safety, to training, and, lastly, to my present job recharging compressed air cylinders at Fire Service Head Quarters. .... Although these light duties are completely different from my pre-accident work as a leading firefighter the fire authority have still not provided me with a new job description or revised terms and conditions of my employment. I am still in uniform but I feel a complete outcast from the Brigade with no training or operational duties, little or no job satisfaction, no promotion prospects, no chance to earn overtime, no shift duty system and no light at the end of the tunnel except the outcome of these proceedings .... But everyone knows that I will never respond to a fire call again. I cannot call myself a firefighter because I can no longer fight fires."

Precisely what duties Mr. McCalman would have been required to perform is not clear as he did not obey the instruction to report for duty. But the Authority made plain that they instructed him to return to work "to undertake non-operational duties" (see the letter of 30 October 1996 from the Authority to Mr. McCalman's solicitors).

27. We are told by Mr. Hand Q.C. appearing for the Authority that there are up to 28 other employees of the Authority who may be affected by the outcome of this appeal. I shall make no assumption that everyone so affected adopts the same attitude as Mr. Lockwood and Mr. McCalman. I recognise the possibility that there may be some firemen who having suffered a disabling injury are entirely content not to receive an injury or ill-health award and to continue to be paid by a fire authority as regular firefighters, contributing as such to the Scheme but performing non-operational duties. Whether that can lawfully be done turns largely on the true construction of the Scheme and the application of the statutory provisions to the particular facts.
28. Before the judge it was argued by Mr. Lockwood and Mr. McCalman that they had a right to be retired compulsorily by reason of their permanent disablement and that they had been compulsorily retired by the Authority from the position of a regular firefighter pursuant to Rule A15(1). It was accepted by the Authority that by Rule A3 the Scheme had exclusive application to regular firefighters. But it was submitted that Mr. Lockwood is and Mr. McCalman, but for his dismissal, would have been a regular firefighter as defined in Sch. 1 to the Scheme. The Authority argued that it has an unfettered discretion as to whether or not to retire compulsorily under Rule A15, irrespective of whether the fireman was permanently disabled, that permanent disablement meant an inability to carry out every part of the fireman's duties and that neither the Rule H1 nor the Rule H3 procedure could be invoked in the case of the applicants.
29. The judge, having concluded that Mr. McCalman like Mr. Lockwood was permanently disabled within Rule A10, went on to hold that the Authority's decision to place the applicants on non-operational duties, whilst not improper, was a decision that they were permanently disabled, that the Authority had required the applicants to retire, that the definition of a regular firefighter in Sch. 1 to the Scheme was not a historical reference and that only those who are or who may be required for firefighting are members of the Scheme, that both applicants ceased to be required for firefighting when they were required to report for non-operational duties, that they were thereby dismissed and that the Authority's scheme establishment was thereby reduced by two. Although it was not necessary for his decision, the judge went on to say that the Authority had a discretion under Rule A 15(1) which was limited by the employer's duty of good faith and which in particular circumstances requires the Authority to retire a fireman. He also said that Rules H 1 - H 3 were applicable to resolve any disputes about entitlement to pension, including a refusal to retire compulsorily.
30. The judge granted the following declarations in relation to Mr. McCalman:

"(1) ".... incapacity .... for the performance of duty ...." under Rule A10(2) of [the Scheme] means in the case of a regular firefighter incapacity for the performance of the duties of a regular firefighter, including engaging in firefighting if required.

(2) Under the provisions of [the Scheme] once a question whether a person is entitled to any award pursuant to any of those provisions has arisen, the relevant fire authority is obliged to obtain and consider the relevant medical opinion and make determinations in accordance with and subject to the rights of appeal and to reconsideration under Part H of [the Scheme] and has no discretion to refuse to do so.

(3) The Applicant is and was on 21 October 1996 permanently disabled within Rule A10 and Rule A15 of [the Scheme].

(4) The Applicant was on 21 October 1996 required to retire from his employment as a regular firefighter.

(5) The Applicant was from 21 October 1996 and is entitled to an ill health award under Rule B3 of [the Scheme].

(6) An issue has arisen whether the Applicant is entitled to an injury award under Rule B4 of [the Scheme] and [the Authority] are accordingly obliged to decide the questions arising under Rule H1(2)(c) and (d) of [the Scheme] as soon as reasonably practicable."

Similar declarations were made in relation to Mr. Lockwood save that the relevant date for him was 16 December 1996.

31. Mr. Hand has helpfully identified five issues as being the live issues on this appeal. They are:

(1) Does a regular firefighter have to be concerned directly with fighting fires?

(2) Does the definition of a regular firefighter in Sch. 1 to the Scheme refer to the situation at the time of the appointment or does it describe the situation current at the time when the fireman's status is called into question?

(3) Does the "performance of duty" in the definition of disablement in Rule A 10(2) refer to all the firefighter's duty or to the principal or core duties of a firefighter?

(4) Were the applicants required by the Authority to retire under Rule A15?

(5) Does the Authority have a discretion to retire the applicants?

(1) Firefighter

32. Mr. Hand's primary submission was that a regular firefighter need not be concerned directly with putting out fires. He suggested that there was no core obligation that a firefighter must be capable of attending fires. He pointed to s. 1 of the 1947 Act as indicating that the provision for firefighting purposes which it is the duty of every fire authority to make goes far wider than simply attendance at fires. That is, of course, correct, but as the definition of "fire-fighting purposes" makes clear the extinction of fires and the protection of life and property in case of fire are the purposes for which provision is to be made. Mr. Hand also pointed to the recognition in para. 3 of the Grey Book that the responsibilities of the qualified firefighter go beyond the principal duties described in the QFJ and to the acknowledgment in the QFJ description that attendance at emergencies is not the only important role of the firefighter. Mr. Hand's submission amounts to saying that because a firefighter is a person with a number of duties, so long as he continues to have any of those duties he remains a firefighter. That is not only logically fallacious but it also involves a misuse of language: it is impossible to describe the non-operational functions which Mr. Lockwood has been required to perform as firefighting. I cannot see why firefighting should not mean fighting fires.
33. But in any event this question should not be considered in isolation from the context in which it is relevant. What is important is the question whether the applicant satisfied the description of "a whole-time member of a brigade appointed on terms under which he is or may be required to engage in fire-fighting whose appointment is not a temporary one". That definition in Sch. 1 to the Scheme must be construed in the light of the other provisions of the Scheme. To my mind it is clear beyond argument that the Scheme distinguishes between those who are, or may be, required to engage in fire-fighting and those who are not. Save for the more senior ranks (and even they must retire at 60), firemen must retire at 55, a comparatively early age explicable by the need for active firefighters to be fit and strong, as confirmed by the physical requirements of the Appointment Regulations. The rationale for the high contributions and generous benefits under the Scheme is that the regular firefighters are exposed to hazards in the course of their duties (recognised in the definition of qualifying injury in Rule A9). There can be no other relevant pension scheme available to those within the Scheme and subject to the right of election available to regular firefighters under Rule G3 they cannot opt out of the Scheme. That the Scheme is limited to those who are concerned directly with fighting fires is consistent with the 1947 Act, the Discipline Regulations and the Appointment Regulations. It is also consistent with the contractual documents.
34. The judge thought it quite clear that only those who are actually required contractually to fight fires or who remain contractually available to be called on for firefighting (or whose duties include what in a Home Office circular dated 28 May 1992 is described as a firefighting element) come within the definition. I respectfully agree.

(2) Appointed

35. Mr. Hand submitted in the alternative that "appointed" in the definition of "regular firefighter" means "who was appointed", thereby according with the 1973 Scheme and the definition of "regular fireman" therein contained and so rendering the position before 1 March 1992 the same as the position after 29 February 1992. He went on to submit that the words in the relative clause of the definition commencing "under which" stated the conditions to be satisfied at the time of the appointment. He said that that historical approach was sensible, being consistent with (a) the Appointment Regulations under which the qualification for promotion is a finite period of past operational service and (b) the fact that as employees become older and are promoted they are less likely to engage in direct firefighting. He contended that the applicants satisfied the conditions in the definition when they were appointed and did not cease to be regular firefighters when unable to engage in firefighting and instructed to do non-operational duties.
36. In my view it is immaterial whether appointed means "who is appointed" or "who was appointed". What is significant is the use of the present tense where it occurs in the relative clause commencing "under which". One also notes the present tense in "whose appointment is not a temporary one". It seems to me plain beyond argument that the conditions for a person being a regular firefighter at any material time are only met if at that time he is or may be required by the terms of his appointment to engage in firefighting. As the judge said, it would make no sense if the Scheme were to continue to apply to someone who was no longer a firefighter, but was a member of the fire control staff or a member of the non-operational staff, when persons in either of those categories do not undertake firefighting risks. That the Appointment Regulations almost inevitably look to past operational service as a qualification for promotion to a particular rank throws no light on the qualification to be a continuing member of the Scheme. As for Mr. Hand's point on increased age and promotion, it ill accords with the contractual requirement that all who are firefighters of whatever rank must remain physically capable of meeting the core obligation of firefighting, if so required.
37. The judge also said that it would not make sense to apply the provisions in Rule A13 for compulsory retirement on account of age or the provisions in Rule A14 to dismiss on grounds of brigade efficiency someone now engaged in the control room who happened to have been a firefighter. I agree. The judge further pointed to the fact that "appointed" qualifies the words "whole-time member of a brigade". Consistency with the Grey Book definition of a member of a brigade by reference to those to whom the Discipline Regulations apply would require that significance be given to the present tense in the definition of "regular firefighter".
38. It is unnecessary to expand on this point further. I have no doubt that Mr. Hand's submission on this issue must be rejected.

(3) Duty

39. Mr. Hand next submitted that neither Mr. McCalman nor Mr. Lockwood was disabled within the meaning of Rule A10(2) because it could not be said that either was suffering from incapacity for the performance of duty when there were duties which each was capable of performing. He said that neither as a matter of statutory construction nor common sense need the "duty" referred to in Rule A10(2) mean the principal duties of a firefighter and that so long as a fireman remains capable of performing some duties required under his contract, even if not capable of firefighting, he is not disabled within the Rule. He pointed to the fact that there is no qualification to the word "duty" in Rule A10(2) and that "duty" is in the singular, which is consistent with "all his duty" rather than "some part of his duty".
40. For reasons similar to those which I have given in relation to the first issue, I am wholly unpersuaded by these submissions. I cannot see how the Authority's construction of the meaning of "duty" in Rule A10(2) accords with the structure of the Scheme. It would be absurd if a firefighter who was so disabled as to be incapable of firefighting could not be treated as disabled merely because he was capable of performing some other duties which in themselves are not characteristic of a firefighter. As the table in Part V of Sch. 2 shows, it is contemplated that a person may be permanently disabled for the purposes of the Scheme even though his disablement is measured as 25% or less, and it is highly improbable that those with slight disablement would be incapable of performing some of the duties of a firefighter other than firefighting. Like the judge I regard Rule K1(3) as significant, as being the mirror image of Rules A10(2) and A15, and the reference in Rule K1(3) to the recipients of the ill-health award becoming capable of performing the duties of a regular firefighter must reflect what was intended in Rule A10(2) by "incapacity .... for the performance of duty" which led to the ill-health award. If incapacity for the performance of duty meant that there was no duty which the regular firefighter had the capacity to perform Rule K1(3) would have had to similarly drawn. The judge rightly explained why Rule A10(2) was worded as it was rather than referring to the performance of the duties of a firefighter. As he pointed out, Rule A10(2) is not a definition clause leading on only to Rules A15 and B3, but it defines disablement for the purpose of all other Rules, including Rule B4 and its mirror image K2 and the table in Part V of Sch. 2. Further, incapacity for the performance of duty must mean something different from incapacity to earn a living, the expression found in the latter part of Rule A10(2) in relation to a child.
41. There is also authority in this court which points against Mr. Hand's submissions. In R v Sussex Police Authority, ex p. Stewart (CAT 29 November 1999) a similar issue arose as to the construction of Rule A12(2) of the Police Pension Regulations 1987, which is worded similarly to rule A10(2) of the Scheme:

".... disablement means inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force, as the case may be ...."

Miss Stewart was retired from the police force as permanently disabled and received an ill-health pension. She was later found to be fit for all but confrontational duties. The Police Authority sought to exercise the right similar to that in Rule K1 of the Scheme to terminate the pension. This court held that the undefined term "ordinary duties" included the essential functions of the office of constable; amongst them were confrontational duties and Miss Stewart by not being able to perform those duties remained disabled. By parity of reasoning, the fact that Mr. Lockwood and Mr. McCalman were capable of performing light duties which are part of a firefighter's duty is nothing to the point whilst each was incapable of performing the firefighter's essential duty of firefighting.

42. For these reasons I would hold that the applicants were disabled within the meaning of Rule A10(2). I would reject the Authority's submissions on the third issue.

(4) Required by the fire authority to retire

43. Mr. Hand submitted that as a matter of English usage "required" involves the positive act of asking or demanding that something be done; in this context, he said, it involved asking or demanding that the employee retire because he is permanently disabled. Mr. Hand criticised the judge's treatment of what Mr. Hand called "the offer" of non-operational duties as a requirement to retire and the judge's equation of dismissal with retirement. He pointed out that a retirement need not be a dismissal and said that the judge's approach was not dictated by statutory interpretation. He referred us to the decision of the House of Lords in Rigby v Ferodo Ltd [1988] ICR 29. In that case an employer had sought to compel an employee to accept a wage that was less than his contractual entitlement, without terminating the contract of employment. The employee in continuing to work and to receive a reduced payment under protest was held not to have accepted a variation of his contract and to be entitled to recover the amount underpaid. I do not see that case as providing much assistance in the present case, given that that case was treated as one not of wrongful dismissal but of one which involved the actual and intended continuation of the contract of employment.
44. The present case seems to me very different. Accepting as I do that it was for the Authority to take action under A15(1) and that it required a demand which amounted to an order that each of Mr. Lockwood and Mr. McCalman should retire, I agree with the judge that that is what happened here. Each had been employed expressly as an operational fireman. Each because of his disablement was expressly instructed to report for non-operational duties. That was no offer: it was an order. The fact that the Authority thought that they had the right to give such instruction under the contract is immaterial. In short the non-operational job which Mr. Lockwood has been required to do is quite different from that which he did under his contract of employment and the non-operational duties for which Mr. McCalman was instructed to report were plainly intended to be different from the duties of an operational fireman. In each case therefore the Authority by its instruction was requiring Mr. Lockwood and Mr. McCalman to take up new duties other than that of an operational fireman. In these circumstances it matters not that the Authority in its instructions did not use the word "retire". Retirement, in the sense of the cesser of the previous job, was the effect, because the instructions were quite inconsistent with the continuation of either applicant as a regular firefighter on the interpretation which I have held to be correct.
45. I doubt if it matters whether or not what the Authority did amounted to a dismissal as that is not the relevant test for the purposes of Rule A15. For what it is worth, I am inclined to think that it did. But for the reasons which I have given I would hold, in agreement with the judge, that the Authority did require Mr. Lockwood and Mr. McCalman to retire as regular firefighters at a time when, and because, they were both permanently disabled from firefighting duties.

(5) Discretion

46. This issue therefore does not arise and I prefer to say little about it. In the Stewart case Simon Brown L.J. expressed the view that Rule A20 of the Police Pension Regulations 1987, which is couched in terms similar to those of Rule A15(1) of the Scheme, conferred a discretion on the Police Authority whether or not to enforce retirement on grounds of disablement. That expression of view was not necessary for the decision in the case. Further, both parties in that case had argued that there was such a discretion. In his skeleton argument Mr. Burke Q.C. for the applicants criticised the view expressed by Simon Brown L.J. But in his oral submissions to us Mr. Burke concentrated on the points of distinction which undoubtedly exist between the Police Pension Regulations and the Scheme. Mr. Hand for his part was constrained to concede that he had gone too far in arguing for an unfettered discretion. I say no more on this issue than that the true effect of Rule A15(1) in circumstances where a fireman has become permanently disabled but the fire authority has not required him to retire must await a case where it is an issue that requires determination.

Conclusion

47. For these reasons and in acceptance of the judge's reasoning and of Mr. Burke's carefully marshalled arguments I would dismiss this appeal.

May L.J.:

48. I agree that these appeals should be dismissed for the reasons given by Peter Gibson LJ. I have also had the advantage of reading Hale LJ's judgment with which I also agree. I wish to add one short point only.
49. It is not necessary on the facts of these two appeals to decide whether Rule A15(1) of the Firemen's Pension Scheme Order 1992 gives the fire authority a discretion not to require a regular firefighter to retire if he is permanently disabled within Rule A10(1) and (2) of the Scheme. Peter Gibson LJ has set out the terms of these Rules in paragraphs 15 and 13 respectively of his judgment. In R. v Sussex Police Authority, ex parte Stewart (CAT 29 November 1999), Simon Brown LJ expressed the view that the similarly worded Rule A20 of the Police Pension Regulations 1987 gave the police authority a discretion whether or not to enforce the retirement of a disabled member of a police force. As Hale LJ has said, this was not necessary to the decision in Stewart. It would not, therefore, have bound this court to reach a similar conclusion for Rule A15(1) of the Firemen's Scheme. In addition, there are substantial differences between the circumstances and duties of police officers and firefighters, such that it could well be that the practical application, if not the abstract meaning, of the two apparently similar provisions may be different. Among these differences is section 19(4) of the Fire Services Act 1947, which requires fire authorities to maintain their firefighting establishment.
50. Regulation A15(1) of the Firemen's Scheme is in permissive language. It could be that its purpose is to enable the fire authority to require a permanently disabled regular firefighter to retire when otherwise there would be no power to do so, but that it does not confer on the authority a discretion not to require a permanently disabled regular firefighter to retire. For present purposes, I am content to suppose (without deciding) that it does in theory confer a discretion. But, if this is so, I think that circumstances are unlikely to arise in practice in which the discretion could lawfully be exercised other than by requiring the disabled firefighter to retire. Mr Hand QC struggled, not least in the face of section 19(4) of the 1947 Act, to suggest examples of such circumstances.

Hale L.J.:

51. I agree that this appeal should be dismissed and add a few words only because it raises issues similar to those decided by a court of which I was a member in R v Sussex Police Authority, ex p Stewart (CAT 29 November 1999).
52. In this case, it is quite clear that each of these applicants was permanently disabled, within the meaning of rule A10 of the Scheme, for the purpose of the compulsory retirement provision in rule A15. If anything, the position under this Scheme is stronger than under the Police Pension Regulations 1987 with which Stewart was concerned. Rule A10(2) of this Scheme defines disablement as 'incapacity, occasioned by mind or body, for the performance of duty, except that in relation to a child it means incapacity to earn a living.' 'Duty' in the case of a person 'appointed on terms under which he is or may be required to engage in fire-fighting' manifestly includes fighting fires. In the Police Pension Regulations, Regulation A12(2) defines disablement as 'inability, occasioned by infirmity of mind or body, to perform the ordinary duties of a male or female member of the force . . . '. Members of the force hold the common law office of constable. According to Halsbury's Laws (4th edition, vol 36(1), 1999 reissue, para 524):

'The primary function of the constable remains, as in the 17th century, the preservation of the Queen's peace . . . The first duty of a constable is always to prevent the commission of crime. If a constable reasonably apprehends that the action of any person may result in a breach of the peace it is his duty to prevent that action.'

In a modern police force, of course, there are many officers whose duties rarely if ever bring them into that situation. The scope and variety of police work today is, I venture to think, much greater even than that of the fire service. But anyone in the office of constable may still be called upon to carry out his primary function. Hence it was held that the ordinary duties of 'a' member of the force include this, even if the ordinary duties of the particular member in question did not.

53. In the police service, this interpretation is obviously necessary to achieve a sensible result. Police officers do not serve under a contract of employment. Their offices can only be terminated voluntarily or under specific powers: apart from disciplinary powers, these are limited to compulsory retirement on grounds of age, or (after a considerable period of service) the efficiency of the force, or permanent disablement. If an officer could not be compulsorily retired unless he was incapable of performing the ordinary duties of any member of the force, very few officers could be retired. We were told that this was rarely a problem, in that there were more officers who wished to be retired when the force might wish to keep them on than there were officers who wished to stay when the force wished them to go. Nevertheless, it must be open to the force to maintain its operational strength at the level which it considers necessary.
54. Neither in this case nor in Stewart were we informed of anything in the law governing the police service comparable to section 19(4) of the Fire Services Act 1947, under which fire authorities have a statutory duty to maintain a minimum establishment of members of the brigade whose duties normally include fire-fighting. We were told that it is controversial whether or not fire-fighters' contracts of employment can be terminated in any other than the four circumstances in which police officers' appointments can be terminated. In those circumstances it is obviously necessary that the brigade have power compulsorily to retire those appointed as fire-fighters who are no longer capable of fighting fires.
55. I also agree that both these officers were 'required by the fire authority to retire' within the meaning of rule A15(1). Their contracts of employment did not include flexibility clauses which might have entitled the brigade to change their job descriptions and other terms of employment. Nevertheless they were both ordered, on pain of disciplinary sanctions, in effect to change their jobs. This was not made explicit, as it was in the Crown Court case of Mander v Oxfordshire County Council (Oxford Crown Court, 5 January 1998), but it was the substance of what was done. Whether or not it amounts to dismissal, it certainly amounts to the ending of one job and the starting of a new one. The parallel with Hogg v Dover College [1980] ICR 39, in which a teacher was removed as head of department and offered shorter hours at lower pay, is much closer than the parallel with Rigby v Ferodo [1988] ICR 29, in which the workforce were being asked to do exactly the same work but for lower wages.
56. The reason why these applicants' old jobs were ended was their disablement. The effect, therefore, was that they were being retired on the ground that they were permanently disabled, under rule A15(1). It cannot be open to a fire authority to avoid the consequences of its own actions by calling those actions something different from what they in fact are.
57. The 'duty' and 'required to retire' points are to my mind sufficient to decide this appeal. It is not necessary, therefore, to decide any of the other points and in particular whether or in what circumstances the fire authority might have a discretion to retain in their employment as fire-fighters (and thus as members of the Scheme) those who are not in fact capable of fighting fires. Quite apart from cases where a particular fire-fighter has specialist skills which the brigade does not wish to lose, there may well be cases where this suits both fire brigade and fire-fighter.
58. Regulation A20 of the Police Pensions Regulations 1987 is in very similar terms to rule A15(1) of this Scheme:

'A20 Every regular policeman may be required to retire on the date on which the police authority determine that he ought to retire on the ground that he is permanently disabled for the performance of his duty. . . . '

In Stewart, the issue was whether the applicant was 'permanently disabled for the performance of duty' within the meaning of regulation A12, which (as seen above) referred to the 'ordinary duties of a male or female member of the force'. But in deciding that this meant operational, confrontational duties, Simon Brown LJ said this:

'Secondly, I see no good reason why [counsel for the applicant]'s construction should not be preferred as a matter of policy. I simply cannot accept [counsel for the force]'s submission that, on this approach, police officers are in a position to exploit the regulations to their advantage. Regulation A20 manifestly vests in the police authority a discretion whether or not to enforce retirement on grounds of disablement. A combination of the words "may" and "ought" in the Regulation make plain that it is they who can compulsorily retire the officer, not he who can compel them to do so. So far, therefore, from police officers being able to exploit the Regulations, the construction I favour would allow the police authority to retain any officer they wish to retain and at the same time enable them to ensure that they have as many fully fit officers as the force requires, for example in times of emergency.'

59. Those observations are plainly obiter dicta. Furthermore, it was common ground between the parties to that case that there was indeed such a discretion, albeit one which might be susceptible to judicial review. It was not, therefore, necessary to examine the details of a police officer's appointment or of the police pensions scheme. There are very significant differences between the police and the fire services, and between the appointment of police officers and of fire-fighters. But there are also very significant similarities. I agreed with those observations of Simon Brown LJ at the time and nothing which has been put before us in this case has caused me to change my view.

Order: Appeals dismissed with costs. Application for leave to appeal to the House of Lords and for a stay refused.

(Order does form part of the approved judgment.)