Vickers v London Fire & Emergency Planning Authority [2010] EWHC 1855 (QB)

Case No HQ009X02247[2010] EWHC 1855 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/07/2010
Before
Mrs Justice Sharp DBE
Between
BEN VICKERSClaimantLONDON FIRE AND EMERGENCY PLANNING AUTHORITYDefendant
Nicholas Randall (instructed by Thompsons) for ClaimantNaomi Cunningham (instructed by Keith Minear, In House Head of Legal and Democratic Services) for DefendantHearing Hearing date: 14 July 2010
JudgmentThe Honourable Mrs Justice Sharp DBE:
[1]The Claimant seeks damages for breach of his employment contract and a declaration. He was at the material time a firefighter employed by the Defendant. This hearing is confined to the issue of liability and the claim for a declaration. The parties are agreed that the question of damages, if it arises, can be dealt with by agreement, or at a later hearing if necessary.[2]On 2 December 2003, the national fire service employers’ body agreed a new competency based pay structure with the Fire Brigade Union (a change from the previous structure based on length of service). Its implementation required consequential amendments to the relevant terms of employment, which were duly negotiated in the course of 2004 and came into effect on 26 August 2004. These terms are contained in the 6th edition of the Scheme of Conditions of Service of the National Joint Council for Local Authority Fire and Rescue Services (‘the Grey Book’).[3]The material facts giving rise to the claim are agreed. Though I heard limited oral evidence from both sides it was mostly not contentious; and was in my view, largely unnecessary to resolve the short issue which arises, which is essentially one of construction. The relevant contractual provision that falls to be construed is paragraph 7 of section 3 of the Grey Book.[4]Paragraph 7 of the Grey Book provides as follows:
“As with all other units in a role map, a fire and rescue authority can require an employee to carry out driving duties. Where the fire and rescue authority does not require an employee to drive or, for genuine reasons, the employee is unable to drive he or she shall be regarded as competent in the role subject to having demonstrated competence in all other applicable functions in the role map.”
[emphasis added][5]The issue between the parties centres on the meaning of the highlighted words, and arises in this way.[6]Firefighters who demonstrate competence against nine prescribed criteria (or units of the firefighters’ ‘role map’ as it is called) are entitled to a rate of pay known as competency pay. Before they reach this level, they are paid at a lower, developmental rate. One of the nine competencies is the ability to drive, manoeuvre and redeploy a fire appliance. A firefighter is ineligible to undertake training to drive a fire appliance until he holds an ordinary driving licence.[7]The Claimant was employed as a firefighter from 13 April 2004. When he joined the fire service it was not a precondition (as it later became) that fire fighters hold an ordinary driving licence, and he did not do so. He had taken, but failed, a driving test in September 2001. He took the test again in September 2008 and failed. He passed it in December 2008, but in the event, he resigned from the fire service in June of this year, for unconnected reasons, and before he could be put on a course which would qualify him for driving duties.[8]Those who were employed before the date that the new pay structure was agreed (that is, pre 2nd December 2003) and who had not achieved 4 years service were ‘exempt’ in that they were automatically deemed to be ‘competent’ for pay purposes after 4 years, regardless of whether they had ‘signed-off’ as competent or not. The Claimant however, fell into the category of employees recruited in the 9 month period between the 2nd December 2003 and 26 August 2004, when driving became a contractual requirement under the amendments to the Grey Book. Such people (including the Claimant) were not required to hold an ordinary licence at the time of recruitment, but were thereafter, if they wished to achieve the nine competencies, unless they came within the relevant exception in paragraph 7.[9]It is common ground between the parties that the Claimant’s contract of employment incorporated the Grey Book for the time being in force. It is also common ground that by the 25 December 2006 the Claimant had achieved eight out of nine competencies. It is not said by either side that the Defendant had waived its right to require the Claimant to drive (as it clearly could do in accordance with paragraph 7). The Claimant was therefore entitled to receive the higher rate of competency pay if, but only if, for genuine reasons he was unable to drive. The Claimant says he was entitled to the higher rate from the 25 December 2006 because he was unable to drive for genuine reasons: that is because he had no valid driving licence. He therefore asks for a declaration that his failure to hold a valid driving licence amounts to a genuine reason for the purposes of paragraph 7 of section 3 of the Grey Book.[10]The Claimant had, it appears, expressed a preference not to drive because he had experienced at first hand, two serious road traffic accidents when a serving soldier in Bosnia, but it is not suggested by either side that this was a relevant reason for him not to drive.[11]The issue in a nut shell is therefore whether a firefighter who does not hold an ordinary valid driving licence because he has not passed his ordinary driving test is “unable to drive for genuine reasons” in the sense contemplated by paragraph 7.[12]The immediate context of paragraph 7 is Section 3 of the Grey Book which deals with the relationship between the roles and responsibilities of firefighters, the needs of the employer and the competency based pay structure. It provides in part:
“1. …the roles [of fire and rescue service employees] used shall be as the fire and rescue authority considers necessary and specific activities within those roles will be determined by the authority [employer] to meet the local needs of the service based on risk. Competence and pay Rates of pay are based on defined stages of development leading to demonstration of competence in the employee’s role. These stages are: Training For the roles of Firefighter and Firefighter (Control) the training stage is the point at which an employee is in full-time training and is not yet performing the role in its appropriate context. An employee in this position will receive the trainee rate of pay. Development The development stage is where an employee is working under supervision in the role and is being assessed against the different functions that make up that role. An employee at this stage, before demonstrating competence in the full requirements of the role, will receive the development rate of pay. Competent After all applicable functions have been assessed as having been achieved, the employee will have demonstrated ‘competence’ in his or her role and will receive the appropriate competent rate of pay… 5. Fire and rescue authorities can use whichever roles they consider necessary. Specific activities within roles will be determined by the authority to meet the local needs of the service based on its integrated Risk Management Plan… 6. The units of competence that form each of these roles are laid down in the NJC document – Fire and Rescue Services Rolemaps. Fire and rescue authorities can require any reasonable activity to be carried out by an individual employee within his or her role map. These role maps reflect fire and rescue service responsibilities incorporated into local integrated Risk Management Plans…”
Competence and pay Training Development

Competent

[13]The parties put the nub of their contentions in this way.[14]Mr Randall, who appears for the Claimant, submits the meaning of the relevant part of paragraph 7 is plain and obvious. All that is required is that there exists a reason, which is genuine (i.e. not a false or fake one) why someone is unable to drive. The Claimant did not have a driving licence. Someone who does not hold a valid licence is unable to drive. There was therefore a genuine (i.e. real, true, not a fake or counterfeit) reason why the Claimant was unable to drive. Accordingly he was entitled to be regarded as competent and paid as such, as he had achieved the other eight competencies required by the role map;[15]Ms Cunningham who appears for the Defendant submits the issue breaks down into two questions:(i) Was the Claimant unable to drive?(ii) If so, was he unable to drive for genuine reasons? She then puts the matter in two ways. Her first submission focuses on the word “unable.” She submits “unable” is distinct from “unwilling”, and there is no reason to think the Claimant was unable to drive. He passed his test in December 2008. There is no reason to suppose there was any change in his abilities between December 2006 (when he reached the threshold of eight competencies) and December 2008. What changed was not his ability to drive, but his legal entitlement to do so, because he took and passed a driving test. Moreover, she submits the Claimant’s construction (no driving licence, therefore “unable”) would render the second question redundant or otiose.[16]But if the court accepts an inability to drive includes not being entitled to drive her second submission focuses on the context in which the relevant paragraph came into force. She submits that paragraph 7 must be construed in the context in which it was agreed (see e.g. Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989, 995-6). In that factual context, the requirement for a genuine reason must be limited to reasons beyond the control of the firefighter in question.[17]She draws attention to the following as the factual context or matrix in which this provision was agreed. The requirement for firefighters to drive was introduced at a time when the Defendant was experiencing a widening gap between its need for fire appliance drivers and the numbers it was training – a problem that was particularly pressing in London where driving was stressful and frustrating: see the report by the Human Resources and Equalities Panel Director to the Defendant: “Addressing the Shortfall in Fire Appliance Drivers” of 25 February 2004 and minutes of the meeting of the Defendant on 4 March 2004, addressed by a representative of the Fire Brigade Union, which received that report. That gap persists: see the “Breakdown of Requirements” dated 12 July 2010. Making the driving unit compulsory was therefore part of the employers’ strategy for addressing driver shortfalls.[18]She submits the strategy to increase appliance driver numbers by making competence in the driving unit of the fire fighters’ role map a mandatory requirement for qualification for the competent rate of pay would be undermined if it were open to a firefighter to exempt himself from it by simply failing an ordinary driving test – still less, by choosing not to take one at all.[19]Mr Randall accepts that the driving of appliances is obviously an issue for the employer not least because a contractual change has been made which makes driving a contractual obligation – but he submits it would be wrong to extrapolate from that a strict requirement to achieve the competency and a correspondingly narrow construction of the exemption. He submits the exemption here was apt to cover a relatively small numbers of individuals in the position of the Claimant for whom “the goal posts had moved” with regard to the requirement to drive, after they joined the fire service. The evidence was only 344 individuals fell into this “rump” category; and that number had now reduced. It was a small group which should be safeguarded.[20]The relevant principles of law on construction of contracts is well-settled. The object of the construction of terms of a contract is to ascertain “…the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract….The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars: the meaning of the document is what the parties using those words against the relevant background would reasonably have understood them to mean. The background may …enable the reasonable man to choose between the possible meanings of words which are ambiguous…” (per Lord Hoffman, Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 W.L.R. 896 at 912-913).[21]The approach to construction of contracts is “neither uncompromisingly literal nor unswervingly purposeful” (per Sir Thomas Bingham M.R, Arbuthnot v Fagan [1996] 1 Lloyd’s Reinsurance Law 135 at 139); and there has been a shift against literalism and towards a more commercial approach: see Crystal Palace FC (2000) Limited v(1) Simon Paterson (as Liquidator of Crystal Palace FC (1986) Limited)(2) The Football League Limited [2005] EWCA Civ.180.[22]In my view, the phrase “unable to” in the context of driving, does not mean “not entitled to” drive, but “incapable of” driving (for medical reasons, or physically for example). An “uncompromisingly” literal approach, even if it were a valid one to take, does not therefore lead to the interpretation contended for by the Claimant. I consider on its true construction, the genuine reason exception to paragraph 7 is limited, given the context, to reasons beyond the control of the firefighter in question.[23]The overall background to the agreement was the change from a pay structure based on length of service, to one based on competencies which firefighters were expected to achieve. The purpose of making it a requirement to drive post 2004 was to address the problem recognised by both the employers and the Fire Brigade Union of a significant shortfall in drivers, particularly in the metropolitan areas; and to increase the numbers of firefighters achieving the driving competency, so they could drive fire appliances if the employer required them to do so. Flexibility was built in, but the “default” position was employees could be required to drive; and could not otherwise achieve the higher competency pay rate, unless either the employer did not require them to drive, or for genuine reasons they were unable to do so.[24]As Mr Randall accepts it would follow from the Claimant’s construction of paragraph 7 that someone in the position of the Claimant could choose not to take a driving test, because, for example, they simply did not want to do so, or because in their view they had better things to do with their time, and that would be sufficient to amount to a genuine reason for these purposes.[25]It would also follow that all those in post and recruited after December 2003 who did not have an ordinary driving licence would not and could not be required to drive by the Defendant when paragraph 7 came into effect, even though the “exception” to paragraph 7 is prefaced by the words “a fire and rescue authority can require an employee to carry out driving duties.” Moreover, such persons would be entitled automatically to the higher rate of competency pay even if the decision not to take a test was simply wilful. The ‘requirement’ for an employee to carry out driving duties, to this extent (paradoxically) would be voluntary; and someone could be “unable” to drive as a matter of choice.[26]Having regard to the factual matrix and purpose of the agreement to which I have referred, this is not a result which I consider the parties would have contemplated, nor is the Claimant’s construction of paragraph 7 one a reasonable commercial person would place on it.[27]In those circumstances, the Claimant is not entitled to the declaration sought and his action for breach of contract is dismissed.