Balmer v Chief Constable of the Police ... [2009] NIIT 6936

THE INDUSTRIAL TRIBUNALS

CASE REF: 6936/03

CLAIMANT: William Balmer

RESPONDENT: Chief Constable of the Police Service of Northern Ireland

DECISION

The unanimous decision of the tribunal is that on eight occasions within the relevant time period the respondent refused to permit the claimant to exercise his right to have 11 consecutive hours rest contrary to Regulation 10(1) of the Working Time Regulations (Northern Ireland) 1998. The tribunal makes a declaration to that effect and determines the remedy as follows: The respondent shall pay to the claimant the appropriate overtime rate for each hour on each occasion that the claimant was refused his right.

Constitution of Tribunal:

Vice President: Mrs P Smyth

Members: Mr J Nicholl

Mrs E Kennedy

Appearances:

The claimant appeared in person.

The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Crown Solicitor’s Office.

The claim

1. In 2003, the claimant, along with almost 6,000 police officers brought a claim in the Industrial Tribunals alleging breaches of the Working Time Regulations (Northern Ireland) 1998 (hereinafter referred to as ‘the Regulations’).

Background to the claim

2. The Regulations came into operation on 23 November 1998. They implement the EC Working Time Directive which lays down minimum health and safety requirements in respect of periods of daily rest, breaks, weekly rest and other aspects of the organisation of the working time. Essentially, the purpose of the Directive is to improve the working environment to protect the health and safety of workers.

3. In many respects the enforcement of the Regulations is the responsibility of the Health & Safety Executive for Northern Ireland. However, entitlement to rest periods and other entitlements is enforced by way of an individual application to the Industrial Tribunal.

4. The legislation contains a number of ‘derogations’ or special cases in which the Regulations do not apply. For example, the limits on the working week and night work and the right to daily rest periods and breaks and weekly rest periods do not apply to people whose working time is not measured. Nor do the limits apply to a whole range of activities such as security and surveillance and those requiring continuity of service or production, although compensatory rest should be provided. These provisions can also be modified by collective or workplace agreements.

5. The relevant provision for the purposes of these proceedings is Regulation 10 which entitles an adult worker to a rest period of not less than 11 consecutive hours in each 24 hour period during which he works for his employer.

The response

6. In 2004 the respondent lodged a generic response to all of the claims which were lodged under the Regulations. The response denied that the Regulations had been breached and also alleged that all of the complaints were presented outside the time-limit. The respondent also indicated that it would rely on Regulation 18(c) of the 1998 Regulations which deals specifically with exceptions to the Regulations. Regulation 18 sets out a number of excluded sectors including “where characteristics peculiar to certain specific activities such as the armed forces or the police, or to certain specific activities in the civil protection services, inevitably conflict with the provisions of these Regulations”.

7. However, the respondent made an application to amend the response and set out new generic grounds of defence in respect of all claims along with specific grounds of defence in respect of this particular claim. The application to amend the response was granted in view of the fact that the claimant has been aware of the new generic and specific grounds of defence since 9 July 2009 and has not been taken by surprise.

8. The respondent no longer relies on Regulation 18(c) in respect of this claim. However, the respondent makes it clear that it may rely on Regulation 18(c) or other specific grounds of defence in respect of other claimants who have brought a claim to the tribunal.

9. In the new response the respondent continues to deny that any breach of the Regulations has occurred. Furthermore, the respondent relies on the wording of Regulation 30(1)(a) in its submission that the claimant has not established the right to bring a claim to the tribunal. Regulation 30(1) states:-

“A worker may present a complaint to an industrial tribunal that his employer –

(a) has refused to permit him to exercise any right he has under –

(i) Regulation 10(1) or (2), 11(1), (2) or (3), …”

[Emphasis added]

The respondent relies on the decision in Miles (appellant) v Linkage Community Trust Ltd (respondent) [2008] IRLR 602 in support of its submission that the language used in Regulation 30(1) requires two positive steps to be taken. One is the exercise of the right by the employee and the other is refusal of permission to do so by the employer. The period of default begins when the employer refuses to permit exercise of the right. The employee cannot count the refusal of permission from the date he started working under the relevant working pattern. The respondent contends that the claimant did not exercise his right to rest periods and therefore there has been no refusal of permission by the respondent.

10. Furthermore, the respondent’s new generic defence relates to any award of compensation which the tribunal may in its discretion decide to award. The response states:-

“The evidence of the respondent will be that generally police officers were very keen to work overtime and sought as much overtime as possible; further that there was no intention to breach the provisions of the Working Time Regulations and finally, no issue was being raised by the Police Federation. In fact, most police officers were content with the working arrangements as applied.”

The respondent continued at Paragraph 21 of its generic defence as follows:-

“Further and in the alternative and in the event that the claimants could overcome the substantive defence set out above (relating to the exercise of their rights) there is no evidence of any loss being sustained by any claimant. All additional hours worked were compensated by overtime payments.”

11. The respondent contends that any breaches which might be established by any claimant are largely technical and that such a breach is not sufficient to warrant an award of compensation being made. It is not clear what is meant by describing a denial of the right to appropriate rest periods as a ‘technical’ breach.

12. It is important to note that at the conclusion of the hearing the respondent conceded that in fact officers were not compensated for any loss of rest periods and overtime payments were not related in any way to the failure to provide rest periods.

The time within which a claim must be brought

13. Regulations 30(2) of the Regulations states that an industrial tribunal shall not consider a complaint unless it is presented:-

(a) before the end of the period of three months … beginning with the date on which it is alleged that the exercise of the right should have been permitted (or in the case of a rest period or leave extending over more than one day, the date on which it should have been permitted to begin) or, as the case may be, the payment should have been made; or

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three … months.”

14. When the 6,000 cases approximately were lodged by police officers in 2003, the case of Catherine Diane Armstrong v Chief Constable of the Police Service of Northern Ireland was chosen as a ‘lead’ case by the Police Federation and the Chief Constable to determine the meaning of Regulation 30(2). The Federation represented Ms Armstrong only at that time. The decision of the tribunal was that each breach of the Regulations is a separate complaint and the three month time-limit runs from the date of each breach unless time is extended under Regulation 30(2)(b).

The issues to be determined

15. The claimant in this case did not seek to have time extended under Regulation 30(2)(b). Accordingly, it was common case that the jurisdiction of the tribunal to consider breaches of the Regulations is limited to the three months prior to the presentation of the claimant’s claim on 18 November 2003.

16. At the hearing the respondent conceded that on eight occasions in the three months prior to the claim being lodged, the claimant did not receive his entitlement to 11 hours’ consecutive rest in each 24 hour period that he worked for the respondent.

17. The dispute between the parties is:-

(a) Whether the claimant has established that the respondent has refused to permit him to exercise the right to have 11 hours’ consecutive rest on the eight occasions on which the respondent agrees the claimant did not receive the appropriate rest period.

(b) If so, whether any award of compensation should be made.

18. The facts found by the tribunal on a balance of probabilities

18.1 On 23 November 1998 the Working Time (Northern Ireland) Regulations came into operation. Those Regulations applied to the Police Service of Northern Ireland except and insofar as the respondent could rely on an exception set out in the Regulations.

18.2 On 9 October 2000 the Police Service issued a General Order (General Order No: 89-2000) explaining the rights and obligations arising out of the Regulations.

18.3 The Force Order stated, in particular, that:-

“ (1) …

(2) …

(3) The Police Federation for Northern Ireland have lodged a claim with the Police Negotiating Board (‘PNB’) in relation to a number of issues in the Regulations that differ from current police regulations. In particular, they are concerned about the definition of working time, the daily rest period and compensation for untaken annual leave.

(4) Depending on the outcome of the Police Federation claim some aspects of how the Regulations are applied may change in the future. The current duty roster and other relevant work practices will continue to operate pending the outcome of the PNB claim.”

[Emphasis added]

18.4 On 28 May 2002 an agreement was reached in the Police Negotiating Board which was effective from 19 October 2000 and which required amendment to the Police Regulations to ensure compliance with the Regulations In relation to the entitlement in daily rest the agreement reached was as follows:-

“3. Regulation 10 provides for an entitlement to ‘a rest period of not less than 11 consecutive hours in each 24-hour period’ which is at variance with the eight hours currently conferred by Police Regulations. The PNB [Police Negotiating Board] has therefore agreed that the [police] regulations should be amended as follows to take account of this entitlement.

Regulation 27(4)(a) (England and Wales) (and equivalent Regulations for Scotland and Northern Ireland) – 11 hours to be substituted for the current 8 hours; and consequent amendments to Schedule 1 (modification for part-time service).

Regulation 27(4) (England and Wales) (and equivalent Regulations for Scotland and Northern Ireland) – after ‘unless the joint board agrees otherwise’ : insert ‘subject to an equivalent period of compensatory rest’.

[Emphasis added]

18.5 Despite the agreement reached at the PNB in May 2002 the duty roster was not amended to ensure 11 hours rest. In July 2002 a Working Group was established to research the different aspects of the Regulations and to assess the likely impact of the implementation of the Regulations on the Police Service. Representatives from the Police Federation formed part of the Working Group.

18.6 In late 2002 the Police Federation submitted draft proposals on a workplace agreement pursuant to Regulation 23 of the Regulations.

18.7 On 27 January 2003, Chief Inspector Marshall of Staff and Policy Development prepared a paper on the application of the Regulations. Although it does not expressly say so, it is apparent that the paper relates to the Police Federation proposals. The paper confirmed that although Force Order 89/2000 was issued the Working Time Regulations had not as yet been implemented within the PSNI. Chief Inspector Marshall pointed out that the Health & Safety Executive for Northern Ireland, the Government Body responsible for ensuring that organisations are complying with the Working Time Regulations had received some queries from individual officers concerning the application of the Regulations to the PSNI. In particular, he stated that the traditional force duty roster is not compliant with the Regulations because it involves ‘quick changeover’ shifts allowing only eight hours between duties, instead of the required 11 consecutive hours break. The paper sets out various options for consideration by the Police Service and recommendations regarding the implementation of the Regulations.

[Emphasis added]

18.8 It is clear from Chief Inspector Marshall’s paper that there was a serious concern as to the effect of implementation of the Regulations on the PSNI's ability to provide an effective policing service. In particular, he stated “some aspects of a Workforce Agreement, if implemented at present, could result in serious operational problems given the overtime levels and policing problems facing the organisation. For example, the requirements for compensatory rest under Regulation 24 of the Working Time Regulations, whether based on the interpretation of the Police Federation or not, would be very difficult, if not impossible, to implement in practice”.

[Emphasis added]

18.9 By letter dated 6 May 2003, the Police Service set out in detail the aspects of the Federation’s proposals which were not acceptable. In particular, issues surrounding daily and weekly rest periods and compensatory rest periods were in contention.

18.10 Chief Inspector Marshall recommended that formal negotiations should be conducted with the Police Federation in order to work towards the drawing up of a Workforce Agreement which was acceptable to both the PSNI and the Federation. He further recommended that any agreement should only be implemented “at the stage when the organisation is facing a more stable environment and has reached its full establishment of regular officers”. Although it was recognised that the advantages of this option were that:-

· this would be evidence of attempts to provide improvement in this area;

· [was] probably the only practical option given current staff shortages and policing needs;

the disadvantages were that:-

· Some of the detailed matters concerning the Regulations, for example, on-call or compensatory rest, will not have been clarified;

· this would leave the organisation, at present, in breach of the Regulations.

[Emphasis added]

18.11 On 11 April 2003, a memo from Joe Stewart, Senior Director of Human Resources, was issued stating:-

“In view of several factors, including the high level of policing demands currently impacting on the PSNI and the number of officers available for full operational duty, implementation of the Working Time Regulations will be achieved by phasing in different aspects of the Regulations over a period of time.”

[Emphasis added]

18.12 In an undated paper, Joe Stewart stated:-

“Until a Workforce Agreement is in force, there is no provision for compensatory rest (this relates to provision of rest for officers required to work into their 11 hours between duties). However, District Commanders should, where possible, endeavour to ensure that members are facilitated with 11 hours between duties … .”

He also observed:-

“It must be recognised that the Police Service of Northern Ireland has responsibility for the delivery of an effective policing service to all communities in Northern Ireland. Whilst the Police Service of Northern Ireland is fully committed to complying with the requirements of the Working Time Regulations, implementation of the Regulations cannot be at the expense of service delivery or the safety of police officers performing operational duty in difficult and other dangerous circumstances. Several factors, including the policing climate and the number of police officers available for full operational duty, necessitate implementation of the Regulations being phased in over a period of time … .”

[Emphasis added]

18.13 In 2005, Chief Inspector Pennington took over responsibility for the agreement of a satisfactory Workplace Agreement with the Federation, and in 2006 an agreement was reached.

18.14 The claimant has been a police officer for 25 years. The tribunal accepts the claimant’s evidence that the refusal to permit him to exercise his entitlement to 11 hours consecutive rest between shifts impacted on his family life. On the eight occasions that the claimant did not receive his entitlement to 11 hours consecutive rest between shifts, the amount of loss was as follows:-

(1) Wednesday 26 March 2003 - 3 hours

Thursday 27 March 2003 - rest lost

(2) Thursday 27 March 2003 - 3 hours

Friday 28 March 2003 rest lost

(3) Saturday 26 April 2003 - 1 hour

Sunday 27 April 2003 lost

(4) Friday 9 May 2003 - 4 hours

Saturday 10 May 2003 lost

(5) Thursday 15 May 2003 - ^¼ hour

Friday 16 May 2003 lost

(6) Tuesday 3 June 2003 - 3 hours

Wednesday 4 June 2003 lost

(7) Tuesday 10 June 2003 - 1 hour

Wednesday 11 June 2003 lost

(8) Saturday 21 June 2003 - 2¹/₂ hours

Sunday 22 June 2003 lost

18.15 The claimant alleged that he had raised the issue of appropriate rest periods on a number of occasions, although he could not specify when he had done so, nor could he identify the operational planner with whom the issue was raised. He stated that on each occasion that the matter was raised, he was told that ‘exigency of duty’ required him to work the particular shift.

18.16 It was pointed out to the claimant that when the respondent sought particulars of any complaints he had made, his written response was “I did not raise a complaint as it had been reported”. The claimant contended that he regarded raising the issue as ‘an enquiry’ rather then actually making a complaint. The tribunal is not satisfied that the claimant specifically raised the issue of the respondent’s failure to ensure that he received appropriate rest periods, although the tribunal is satisfied that the claimant was discontented with his shift pattern. The tribunal is satisfied that if the claimant had expressed dissatisfaction with rest periods to his superiors, he would have made that clear in his replies to the respondent’s Notice for Particulars.

19. The tribunal’s conclusion on liability

19.1 The issue for determination is:-

“Whether the claimant has established the right to bring a claim to the tribunal.”

As already stated at Paragraph 9 above, Regulation 30(1) states:-

“A worker may present a complaint to an industrial tribunal that his employer –

(a) has refused to permit him to exercise any right he has under –

(i) Regulation 10(1) or (2), 11(1), (2) or (3).

19.2 In considering the interpretation of the equivalent English provision the EAT observed in Miles v Linkage Community Trust Ltd (referred to at Paragraph 9 above) that “it was open to Parliament to have expressed the refusal to permit in neutral terms, such as ‘a failure’ or ‘the non-availability of the right’. We consider this requires answer to two questions. Did the claimant exercise the right? Did the respondent refuse him permission to do so? And in these circumstances it is correct to say that the obligation is triggered when there has been an actual refusal by an employer. The definition of refusal fits perfectly with that approach”.

19.3 The tribunal does not accept that Regulation 30(1) requires an employee to request his entitlement to an appropriate rest period in order to establish that the employer has refused to permit him to exercise that right. It is clear from other statutory provisions that where Parliament requires an employee to make a request before an obligation by an employer is triggered, it expressly says so. For example, Article 124(2) of the Employment Rights (Northern Ireland) Order 1996 which concerns an employee’s right to a written statement of reasons for dismissal expressly states:-

“ … an employee is entitled to a written statement under this Article only if he makes a request for one … .”

19.4 However, even if the tribunal is wrong, on the particular facts of this case, the tribunal is satisfied that the respondent did ‘refuse to permit the claimant to exercise his rights’ under Regulation 10, notwithstanding the claimant’s failure to personally request his rest entitlement on each occasion. The tribunal reached this conclusion because:-

(1) It is clear from the documents provided to the tribunal that the PSNI was fully aware that the Regulations were applicable from November 1998.

(2) Despite a PNB Agreement in 2002 that the Police Regulations should be amended to ensure compliance with the Working Time Regulations, no action was taken by the PSNI to do so.

(3) The Police Federation was actively involved on behalf of its members in negotiations and discussions to ensure that the requirements of these Regulations were adhered to.

(4) The papers prepared by Chief Inspector Marshall and Joe Stewart, Director of Human Resources, clearly reflect a decision on the part of the PSNI that the Regulations would not be implemented unless and until an agreement was reached which was acceptable in terms of ensuring the operational needs of the PSNI. Although changes were made to the annual duty roster in 2003, the Regulations were not fully implemented until the Workplace Agreement was reached in August 2006.

(5) The only reasonable inference to be drawn from these facts is that between 18 August 2003 and 18 November 2003 the respondent did refuse to permit the claimant to exercise his right to appropriate rest periods.

20. The tribunal’s conclusion on remedy

20.1 Regulation 30(3) provides so far as material:-

“(3) Where an employment tribunal finds a complaint under Paragraph (1)(a) well-founded, the tribunal –

(a) shall make a declaration to that effect; and

(b) may make an award of compensation to be paid by the employer to the worker.

(4) The amount of the compensation shall be such as the tribunal considers just and equitable in all the circumstances having regard to –

(a) the employer’s default in refusing to permit the worker to exercise his right; and

(b) any loss sustained by the worker which is attributable to the matters complained of.”

20.2 The tribunal therefore declares that the respondent refused to permit the claimant to exercise his right to 11 hours consecutive rest on the eight occasions set out at Paragraph 18.14 above.

20.3 The tribunal accepts the claimant’s evidence that the annual duty roster containing ‘quick changeover shifts’ which by their very nature denied officers their entitlement to 11 hours consecutive rest in every 24 hours, adversely impacted on his family life. The tribunal further accepts that the claimant was often required to do overtime at the expense of a rest period when he, no doubt like other officers, would have preferred not to do so. Although overtime hours were paid at a higher rate, the claimant did not receive payment for the loss of his rest entitlement.

20.4 In considering the extent of the respondent’s default in failing to ensure appropriate rest periods, the tribunal takes into account the fact that although the Regulations came into operation in 1999, they were not fully implemented until 2006, and it was 2003 before any changes were made to the duty roster. This is despite the fact that in 2002, an agreement reached at the PNB stipulated that Police Regulations governing shift patterns should be changed to accord with the entitlement to rest periods under the Regulations.

20.5 However, the tribunal also takes into account the fact that documents provided to the tribunal reveal that internal discussions and deliberations within PSNI regarding the implementation of the Regulations related to concerns about the PSNI's ability to ensure an effective system of policing and the safety of its officers performing operational duty in difficult and dangerous circumstances. This is against the backdrop of a shortage in police manpower and an unpredictable policing environment. There is no evidence whatsoever of any flagrant disregard for the health and safety of officers in terms of their working time or the objectives which the Regulations seek to achieve.

20.6 In assessing the level of compensation, the tribunal is also mindful that it only has power to compensate the claimant for the eight occasions on which it is agreed that he did not receive his full entitlement to 11 hours consecutive rest in each 24 hours. These are the only breaches which occurred within the statutory time-limit for bringing a claim to the tribunal. Regulation 30(4)(b) requires the tribunal to balance the loss sustained by the worker which is attributable to the matter complained of with the employers default in refusing to permit the worker to exercise his right and to consider what is just and equitable in the circumstances. Having considered all these matters and in particular the reasons for the respondent’s failure to implement the Regulations, the tribunal has determined that it is just and equitable to order that the respondent pays the appropriate overtime rate for each hour that the claimant was entitled to a rest period on each of the eight occasions which are the subject of this claim.

20.7 If there is any dispute about the appropriate amounts, a hearing will be arranged within six weeks.

Vice President:

Date and place of hearing: 2 September 2009, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Balmer v Chief Constable of the Police ... [2009] NIIT 6936_03IT (04 December 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/6936_03IT.html Cite as: [2009] NIIT 6936_03IT, [2009] NIIT 6936_3IT

Industrial Tribunals Northern Ireland Decisions