QUEEN'S BENCH DIVISION
1, Oxford Row, Leeds LS1 3BG
Judgment handed down at
Manchester Civil Justice Centre
1 Bridge Street West,
Manchester M60 9DJ
B e f o r e :
| THE QUEEN ON THE APPLICATION OF THE FIRE BRIGADES UNION
|- and -
SOUTH YORKSHIRE FIRE AND RESCUE AUTHORITY
DAVID MITCHELL (instructed by Barnsley Metropolitan Borough Council Legal Services) for the Defendant
The Interested Party did not appear and was not represented
Hearing date: 26th April 2018
Crown Copyright ©
The Hon Mr Justice Kerr:
"expressly … subject to the condition that the workers concerned are to be afforded equivalent periods of compensatory rest or that, in exceptional cases in which the granting of such equivalent periods of compensatory rest is not possible for objective reasons, those workers are to be afforded appropriate protection" (Union Syndicale Solidaires Isère v. Premier Ministre, Case C-428/09,  IRLR 84, at ).
"must …. be characterised by the fact that during such periods the worker is not subject to any obligation vis-à-vis his employer which may prevent him from pursuing freely and without interruption his own interests in order to neutralise the effects of work on his safety or health. Such rest periods must therefore follow on immediately from the working time which they are supposed to counteract in order to prevent the worker from experiencing a state of fatigue or overload owing to the accumulation of consecutive periods of work (see Jaeger, paragraph 94)" (Union Syndicale, at ).
"(c) …. the worker's activities involve the need for continuity of service or production, as may be the case in relation to [various industries and activities]".
The list of those industries and activities is not exhaustive and could in principle, it is agreed, include a fire brigade if its workers' activities involve the need for continuity of service.
"Where the application of any provision of these Regulations is excluded by regulation 21 or 22, or is modified or excluded by means of a collective agreement or a workforce agreement under regulation 23(a), and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break-
(a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest, and
(b) in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker's health and safety".
"had clearly found that there had been no requirement that the Claimants sign a workforce agreement/other opt-out and could [sic] be no challenge to the dismissal of the claims under section 45A(1)(c).
The Employment Tribunal had found that what the Respondent proposed did not give rise to a contravention of the [Regulations] … [and] had found that the Claimants had not proposed to forego a right (to rest breaks) under the [Regulations] before the Respondent had decided to impose the detriments complained of."
"[i]ntroducing Close Proximity Crewing at four fire stations, reducing staff costs with no impact on our immediate 999 response from those stations".
"The fire and rescue national framework for England says that 'Fire and rescue authorities need to assess all foreseeable fire and rescue related risks that could affect their communities… However this must be within the budget that is available to, and set, by the Fire Authority taking into account Government Grants, Business Rate retention and Council Tax contributions. In order to mitigate the risks that our IRMP identifies, within the financial envelope that we describe at the start of this letter, CPC will continue to be one of the duty systems that are employed so as to continue to provide the most equitable emergency response to the people of South Yorkshire."
The Issues: Submissions
(1) whether the CPC system is unlawful, or has already been held unlawful in a decision binding on the parties;
(2) whether the FBU is precluded from challenging the IRMP for one or more of six reasons advanced by the Authority; and
(3) if the CPC system is unlawful and the FBU is not so precluded from challenging it, whether any and if so what relief should ensue.
(1) The unappealed decision of the tribunal in Mansell is binding and its findings create an issue estoppel on the issue of contravention of regulations 6 and 10 of the Regulations, since breach of those regulations was a necessary ingredient of the claimants' cause of action in Mansell. Issue estoppel also extends to cases where a party to previous proceedings raises a point it should have raised, but did not raise, in the earlier proceedings. Therefore, the Authority should not be permitted to rely on regulations 21 and 22, not having done so in the Mansell litigation.
(2) In any event, the CPC system is unlawful. A public body must exercise its statutory functions in a lawful manner, not for an unlawful purpose; further, it cannot rely on scarcity of funds to justify unlawful conduct (R (Tandy) v. East Sussex County Council  AC 714, per Staughton LJ at 719G-720B, approved by Lord Browne-Wilkinson at 746C and 747B). It was Wednesbury unreasonable to approve an IRMP which committed the Authority to a course of unlawful conduct.
(3) The Authority cannot rely on the exceptions in regulations 21 and 22 of the Regulations; those provisions only apply to an exceptional need to work over a particular rest period, not to a systematic removal of consecutive rest periods, without providing "an equivalent period of compensatory rest" (regulation 24(a)); see Landeshauptstadt Kiel v. Jaeger, at [95-97]; Union Syndicale Solidaires Isère, at [39-40], [49-54].
(4) The Authority can easily, albeit at greater cost, operate a shift system that complies with the Regulations; this is demonstrated by the fact that it does so at all its fire stations except the four where CPC is operated. At all its other fire stations, the lawful 2-2-4 shift system is operated without difficulty. The saving of cost is achieved by requiring fewer firefighters to work harder, in breach of their rights under the Regulations.
(5) The contention that to grant relief would unjustifiably interfere with the exercise of the Authority's core functions under Part 2 of the 2004 Act is not cogent, in view of the Authority's acceptance that it must act lawfully in the exercise of those functions. Further, the requirement to publish the IRMP arises under Part 3, not Part 2, of the 2004 Act.
(6) The suggestion that officials of the FBU have accepted the necessity of the CPC system is irrelevant and also misplaced, as is the suggestion that the FBU has acquiesced in use of the CPC system in areas other than South Yorkshire. The FBU has stated only that it can understand why the Authority finds the CPC system attractive; but its opposition in principle to the use of CPC has been consistent locally and nationally.
(7) There was and is no adequate alternative remedy. The FBU complained to the HSE in 2014 and has spoken to it since, but the latter's response in 2015 was unhelpful and founded on a misconception that the 2-2-4 shift system was also unlawful. The FBU has supported complaints to the employment tribunal, but the latter has no power to stop the illegality; it can only compensate individual workers who bring claims.
(8) The challenge is not brought out of time; it was brought within three months of the Authority's decision to publish the IRMP on 3 April 2017. As Stanley Burnton J (as he then was) said in R (Lambeth MBC) v. Secretary of State for Work and Pensions  EWHC 637 (Admin) at paragraph 38:
"Whether a decision not to change an earlier administrative decision is itself a reviewable decision does not admit of a formulaic or straightforward answer. It must depend on the facts of each case. The Court must determine whether in substance a fresh decision has been made or ought to have been made. A claimant cannot circumvent or avoid the requirements of CPR Part 54.5 or of section 31(6) of the Supreme [now Senior] Court[s] Act simply by requesting reconsideration of an earlier decision. On the other hand, new facts may arise that require fresh consideration …".
(9) Prior to April 2017, the FBU properly concentrated on opposing the CPC by industrial means, through the collective negotiating machinery and by supporting individual employment tribunal claims. The FBU was reasonably entitled to expect that the Authority would either appeal the Mansell decision or comply with it. It did neither. When in April 2017 it refused to exclude use of the CPC system from its published IRMP, the FBU was entitled to challenge that decision and did so promptly.
(10) The FBU could not (through one of its members) bring a private law claim as in Barber v. RJB Mining (UK) Ltd because here there was no viable claim under regulation 4 of the Regulations, the relevant shift workers having opted out of the 48 hour average maximum working week. Aside from regulation 4 claims and enforcement through the criminal law, the Regulations provide that the exclusive remedy is an employment tribunal claim. The ineffectiveness of that remedy to stop the illegality complained of is demonstrated by the Mansell litigation.
(11) The court should not withhold relief in the exercise of its discretion, either under section 31(6) of the Senior Courts Act 1981 or otherwise: cf. R. v. Secretary of State for the Environment (1998) 30 HLR 328, CA, per Judge LJ (judgment of the court) at 380-3. The court's intervention is needed to secure observance of the law by the Authority and to avoid a continuing breach of the law. The court should quash the IRMP and require the Authority to publish a fresh IRMP omitting use of the CPC system.
(1) The application is "misconceived" and the court "does not have jurisdiction to grant the relief sought" (as Mr Mitchell put it in his skeleton argument). The FBU's claim is made in furtherance of an industrial dispute and there is no support for the suggestion that the CPC system is unsafe. The claim is out of time and ignores "the rights of those workers voluntarily working the CPC shift system".
(2) The decision in Mansell is not binding. The FBU was not a party to those claims. Mansell does not establish that the CPC system is unlawful. It concerned the private employment rights of workers; the observations on compliance with the Regulations were obiter dicta and wrong. The Authority did not seek to appeal the decision but does not agree with it. Mr Mitchell mounted (as he accepted) a collateral attack on the decision in Mansell. Further, the Mansell claims were brought under section 45A of the Employment Rights Act 1996, not under the Regulations.
(3) It was not an abuse of process to rely on exceptions to the application of regulations 6 and 10 of the Regulations, contained in regulations 21 and 22; even though the exceptions had not been relied on before the employment tribunal, when the employer was represented by different counsel; cf. Johnson v. Gore-Wood & Co (No 1)  2 AC 1, per Lord Bingham at 31C-D.
(4) There was no breach of regulation 6 in relation to night work. The exception in regulation 21 applies because the activities of the firefighters working CPC shifts involve the need for "continuity of service". The same is true in the case of regulation 10, relating to rest periods; the exception in both regulations 21 and 22 apply.
(5) The obligation in regulation 24 to provide an "equivalent period of compensatory rest" is complied with by the measures attested to by Mr Blunden in his witness statement: "recovery time provided for in the CPC policy …, self-rostering, training, stress risk assessments, welfare meetings and by requiring CPC stations to only attend emergency calls during night shift hours where life is endangered".
(6) The tribunal in Mansell was therefore wrong to find that the only exception that might avail the Authority would be under regulation 23, if there were a suitable collective agreement excluding the application of regulations 6 and 10 of the Regulations. The illegality is the CPC is not established by the FBU refusing to enter into such a collective agreement; its refusal to do so is not a "trump card".
(7) While the Authority accepts that it must act lawfully in exercising its statutory functions, it is for the Authority to decide how to spend its budget. The motivation for the CPC system is not just financial; it is to enable the Authority to maintain emergency response times. The system of work is safe; there have been no accidents or increased sick leave. Any suggestion that the CPC system increases fatigue should be rejected.
(8) The FBU has tolerated and acquiesced in variants of CPC at other locations outside South Yorkshire. The court should not accept the suggestion that only just over 1.5 per cent of firefighters nationally are working under CPC type arrangements. Certain (unnamed) officials of the FBU have acknowledged privately the need to retain the CPC, while publicly opposing it.
(9) The alternative remedy of complaint to the employment tribunal is adequate and is available if any worker wishes to complain of a breach of regulation 10(1) of the Regulations. Regulation 6(1) and (2) are enforceable by the HSE, but that body has declined to act and the FBU did not apply for judicial review of that decision when it was made in 2015. The court should therefore not grant relief now.
(10) To discontinue the CPC system at the four fire stations would place those voluntarily working that shift system under severe financial pressure and would disrupt family arrangements and child care arrangements; for example, to Mr Wayne Dunn, one of the Authority's witnesses who has worked under CPC arrangements for three years and wishes to continue.
(11) Relief should be refused under section 31(6) of the Senior Courts Act 1981 on the ground of undue hardship to those working CPC arrangements and on the ground that to grant relief would be detrimental to good administration: Caswell v. Diary Produce Quota Tribunal for England and Wales  2 AC 738, per Lord Goff at 741D-H and 748G-749F; and R. v. Aston University Senate, ex p. Roffey  2 QB 538, per Donaldson J at 555:
"the prerogative remedies are exceptional in their nature and should not be made available to those who sleep upon their rights".
(12) In the present case, to prevent the use of CPC shifts would prejudice the population of South Yorkshire because a fresh consultation exercise would have to be held, leading to a fresh IRMP; budget cuts would have to be achieved by other means than by the saving permitted by use of CPC; and emergency response times would be placed at risk.
The Issues: Reasoning and Conclusions
"In such proceedings, there are no formal pleadings and it will frequently be difficult if not impossible to identify a particular issue which the 'first' application will have decided. Moreover, we do not think that there is in proceedings brought under Order 53 any true lis between the Crown, in whose name the proceedings are brought (and we venture a reservation about whether or not issue estoppel could operate against the Crown), and the respondent or between the ex parte applicant and the respondent. Further, we doubt whether a decision in such proceedings, in the sense necessary for issue estoppel to operate, is a final decision: the nature of the relief, in many cases, leaves open reconsideration by the statutory or other tribunal of the matter in dispute.
We respectfully adopt a passage from Professor Wade's treatise on Administrative Law, 5th ed. (1982), p. 246 where he writes:
'in these procedures the court 'is not finally determining the validity of the tribunal's order as between the parties themselves' but 'is merely deciding whether there has been a plain excess of jurisdiction or not.' They are a special class of remedies designed to maintain due [process] in the legal system, nominally at the suit of the Crown, and they may well fall outside the ambit of the ordinary doctrine of res judicata. But the court may refuse to entertain questions which were or could have been litigated in earlier proceedings, when this would be an abuse of legal process; and in the case of habeas corpus there is a statutory bar against repeated applications made on the same grounds.'"
"Although not necessary for my decision I also incline to the view that the Divisional Court was right to hold that the doctrine of issue estoppel cannot be relied on in applications for judicial review, although the court has an inherent jurisdiction as a matter of discretion in the interests of finality not to allow a particular issue which has already been litigated to be re-opened. This depends upon the special nature of judicial review under R.S.C., Ord. 53 which makes it different both from ordinary civil litigation inter partes and from criminal proceedings. Like the Divisional Court, I adopt the passage from Professor Wade's Administrative Law, 5th ed. (1982), p. 246, set out in the judgment of the Divisional Court at p. 539."
"My provisional view is that there is no jurisdictional (in the narrow sense of the word) boundary to the power of the Court to grant declaratory relief in this context: the jurisdiction of the Court under CPR Part 40.20 to grant declaratory relief in unrestricted. The restrictions on the power are discretionary. …."
"should not, automatically, ignore the adverse consequence of an order for judicial review on a large number of council tenants who did not themselves cause or contribute to the non-compliance. It is in this context that the fact that Mr Walters' application is not supported by any, or any significant group of other tenants, becomes relevant. We have no difficulty in agreeing that the exercise of the court's discretion does not depend on whether it will attract popular support. If Mr Walters' rights have been breached the unpopularity of granting relief to him will not deter the court from granting it. However when there are other genuine interests which will be adversely affected, the court is not prevented from analysing precisely the rights of which a single or a few individuals have been deprived, and their consequent loss (in whatever form it takes) and the consequences of upholding their rights contrary to the interests of many others. As the grant of judicial review may have substantial adverse consequences for a large number of blameless individuals beyond the applicant himself, in an appropriate case, of which this is one, the exercise of discretion permits account to be taken of these conflicting interests."