Wimpress v Office of the Police Ombudsman... [2012] NIIT 00713

THE INDUSTRIAL TRIBUNALS

CASE REF: 713/12

CLAIMANT: Paul Wimpress

RESPONDENT: Office of the Police Ombudsman for Northern Ireland

DECISION

The decision of the tribunal is that the claimant’s claim in respect of a series of unauthorised deductions from wages is dismissed.

Constitution of Tribunal:

Chairman (sitting alone): Mr S A Crothers

Appearances:

The claimant was present and represented himself.

The respondent was represented by Mr B Mulqueen, Barrister-at-Law, instructed by Napier and Sons Solicitors.

Background

1. (1) The Police (Northern Ireland) Act 1998 (“the Police Act”) established the respondent (“PONI”). Paragraph 8 of Schedule 3 to the Act, as amended, provides, insofar as relevant, as follows:-

“(1) The Ombudsman may enter into arrangements with the chief officer of a police force in Great Britain for members of that police force to be engaged for a period of temporary services with the Ombudsman.

(2) Arrangements under this paragraph with the chief officer of a police force in Great Britain shall provide for the payment by the Ombudsman to the police authority maintaining that police force of such contribution as may be determined by or in accordance with the arrangements.

(3) In the following provisions of this paragraph “relevant service” means temporary service with the Ombudsman on which a member of a police force in Great Britain is engaged in accordance with arrangements under this paragraph.

(4) Notwithstanding anything in any other statutory provision, a member of a police force in Great Britain shall, while engaged on relevant service -

(a) be under the direction and control of the Ombudsman; and

(b) have all the powers and privileges of a constable throughout Northern Ireland and the adjacent United Kingdom territorial waters;

and subsection (3) of section 32 of the Police (Northern Ireland) Act 2000 applies for the purposes of this sub-paragraph as it applies for the purposes of subsection (2) of that section.

(5) The Ombudsman shall be liable in respect of torts committed by members of a police force in Great Britain on relevant service in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and shall in respect of any such tort be treated for all purposes as a joint tortfeasor.

(6) The Ombudsman may, in such cases and to such extent as appear to him to be appropriate, pay -

(a) any damages or costs awarded against a member of a police force in Great Britain in proceedings for a tort committed by that member while on relevant service;

(b) any costs incurred and not recovered by such a member in such proceedings; and

(c) any sum required in connection with the settlement of a claim that has or might have given rise to such proceedings.”

(2) It was common case that the claimant was a secondee from West Midlands Police Force to PONI from 2 January 2007 until 22 January 2012, (‘the secondment period’).

(3) By consent, PONI’s response to the claimant’s claim was amended at paragraph 3.1 to refer to the claimant’s relationship with PONI being that of a secondee.

The Claim

2. (i) In his claim form to the tribunal presented on 20 April 2012, the claimant, who had professional legal advice at the time, included, under the heading of “DETAILS OF CLAIM”, the following:-

“The claimant was seconded from the West Midlands Police Force to the Office of the Police Ombudsman for Northern Ireland ….

On Secondment the Claimant was provided with a document entitled “Statement of Intent” which purported to comply with the Employment Rights (Northern Ireland) Order 1996 in setting out the main terms and conditions of his secondment contract with the Police Ombudsman.

The Statement of Intent set out the following:

“REMUNERATION

Your rate of remuneration will be that of your substantive rank in the Force from which you have been seconded, including a central service, rent allowance etc. Rent allowance will continue to be paid unless the permanent residence is let …

Your salary will continue to be paid by your home force, and [OPONI] will make reimbursements to your home force on a monthly basis …

ACCOMMODATION

During the secondment period, [OPONI] will provide the following assistance to seconded officers:-

· Rent free accommodation within reasonable travelling distance of the Office.

· An accommodation allowance equal to the actual cost of rental/mortgage (up to a maximum of £650 per month) plus reimbursement of utility bills (up to a maximum of £150 per month)

Seconded officers who relocate to Northern Ireland for the secondment period will be entitled to assistance with reasonable relocation costs, ie removal expenses and solicitors fees.

REMOVAL EXPENSES

The Office will reimburse the following:-

· Reimbursement of reasonable costs associated with removal of furniture and effects (on the provision of 3 original quotes) …

CONCESSIONARY TRAVEL

… Seconded officers who relocate to Northern Ireland will, during the period of their secondment be entitled to either six free return economy flights per year between Northern Ireland and Great Britain or an annual flight allowance equal to the cost of six return flights from Northern Ireland to Great Britain that they would ordinarily have used had they not relocated (the amount of this allowance will be calculated by Corporate Services … Untaken flights will not be transferable or refundable from one year to the next …

CHANGES IN TERMS AND CONDITIONS

From time to time your main terms and conditions of employment may be subject to change (ie by negotiated agreement). Should this occur, you will be informed in writing within one month of the change taking effect …”.

The Claimant never received payment for assistance with his accommodation, removal expenses or concessionary travel, throughout his secondment.

The Claimant has suffered a series of deductions from his salary the last of which occurred on 25^th January 2012.

The series of deductions are contrary to Article 45 of the Employment Rights (Northern Ireland) Order 1996.

The Claimant seeks compensation by way of reimbursement and interest on the same.”

(ii) In undated correspondence to PONI the claimant articulated the amount of his claim as follows:-

“Dear Olwen

As you are now aware I will be leaving OPONI on 23^rd January 2012 as I am transferring from the West Midlands Police to the PSNI. I have been seconded to OPONI since 2^nd January 2007 to the present.

Prior to joining OPONI I was sent a Statement of Intent which outlined my working conditions, salary and allowances. I signed this document and returned it. I have included a copy of the document with this letter for your information.

Since joining OPONI I have been paid my basic police salary and allowances commensurate with my rank and length of police service. I have not, however, received any accommodation allowance (up to £650 pm) or reimbursement of utility bills (up to £150 pm) as per the Statement of Intent. I have not availed of the six free return economy flights per year to GB, or received an annual flight allowance. This is contrary to the terms and conditions outlined in the Statement of Intent.

I have estimated that not being paid any of the above allowances in the 5 years I have worked for OPONI has cost me in the region of £56000 (including interest). I have set out how I have arrived at this figure below:

“ACCOMMODATION, FLIGHT AND UTILITY BILL ALLOWANCES

Accommodation Allowance £650pm x 12m x 5 yrs = £39000

Utility Bills £150pm x 12m x 5 yrs = £ 9000

Flight Allowance £150 x 6 x 5 yrs = £ 4500

TOTAL £52500

Less

Housing Allowance received (less tax @ 20%) -£11800

Mooring Fees received (estimate) -£ 1200

TOTAL £39500

Add

Compound interest on 48k@5% pa +£16698

GRAND TOTAL £56198”

I believe it is also worth taking into account that I was not paid any Removal Expenses or Solicitors Fees on joining OPONI, save for one single ferry crossing, and I will not be receiving either of these payments upon my departure from OPONI.”

(iii) The respondent denied the claimant’s claim in its entirety.

The Issues

3. The legal issues before the tribunal were as follows:-

(1) Was PONI the claimant’s employer?

(2) If so, was the claimant an employee or worker as defined in Article 3 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”)?

(3) If the claimant was a worker or employee as defined in the 1996 Order, is the claim, or part thereof, out of time?

(4) Subject to the foregoing, is the claimant entitled to a remedy under Part IV of the 1996 Order (Protection of Wages)?

The claimant also relied on the fact that his claim was not excluded by virtue of Article 243 of the 1996 Order.

Sources of Evidence

4. The tribunal heard evidence from the claimant and, on behalf of PONI, from Olwen Laird, Director of Corporate Services. The tribunal also received a bundle of documentation together with other documentation in the course of the hearing.

Findings of Fact

5. The tribunal made the following findings of fact insofar as relevant to the issues before it:-

(i) The claimant and his wife moved to Birmingham in January 1989 in order for the claimant to commence work as a Constable in West Midlands Police Force. The claimant’s wife and two children moved back to Northern Ireland in December 2003 having bought a property in Bangor, Co Down. The claimant continued to travel between Birmingham and Northern Ireland on a weekly basis and lived in a houseboat during his period of work in Birmingham. The claimant’s case was that he did not relocate to Northern Ireland until Christmas 2006, whereas PONI’s position was that he had relocated to Northern Ireland in 2003 and was therefore not entitled to receive any of the allowances he had claimed. The claimant had already discussed his various claims with PONI’s Chief Executive, Sam Pollock, and Olwen Laird in the autumn of 2006. A further meeting took place on 9 February 2007 with Olwen Laird and the claimant. The tribunal was shown contemporaneous notes of this meeting prepared by Olwen Laird and has no reason to doubt their accuracy or that they reflect the same position from PONI’s perspective, as that indicated to him in the previous meeting referred to in the autumn of 2006. In particular, the discussion covered the areas of the claim for housing allowance, flights, utilities, and mooring costs for the claimant’s house boat, for which he obtained an allowance until September 2007.

(ii) The tribunal carefully examined the document referred to as the “Statement of Intent” in the claimant’s claim. In some respects, this document was poorly drafted and confusing, particularly in its references to “employer” and “employee”, to the claimant’s “main terms and conditions of employment”, and to “secondment, secondees”, and “seconded”. The tribunal is satisfied, however, that the document was an attempt to settle the terms of the “arrangements” referred to in the Police Act and that the claimant was at all material times during the secondment period on “relevant service” referred to in the Police Act and had all the powers and privilege of a constable throughout Northern Ireland and the adjacent United Kingdom territorial waters. He was therefore at all material times a warranted police officer who, although having signed a statement of intent, had his arrangements with PONI grounded in the relevant statutory provisions contained in the Police Act.

(iii) The tribunal considered all relevant documentation referred to it during the course of the hearing, including the correspondence forwarded by PONI to the claimant dated 25 October 2006 which states as follows:-

“Dear Mr Wimpress

OPONI IO (SEC) 5/2006/03 – POSITION OF INVESTIGATION OFFICER (SECONDED)

I refer to your application for the position of Investigation Officer (Seconded), your recent interview and subsequent verbal notification that you have been successful.

I now formally write to offer you the position of Investigation Officer (Seconded) within the Office of the Police Ombudsman. This secondment opportunity is being offered initially on a 1 years basis, subject to review, renewal and extension with the mutual consent of all parties (individual, OPONI and Home Force).

I would be grateful if you could confirm in writing that you are prepared to accept this offer. It is hoped that you will be available to take up your position on Tuesday 2 January 2007, however if this date is not suitable, please contact me so alternative arrangements can be made.

As discussed during your recent telephone conversation with one of my colleagues we will liaise with your personnel department regarding your secondment, and as is Office policy, all appropriate correspondence will be copied to your home force.

I would like to take this opportunity to congratulate you on your success in this competition and I look forward to hearing from you.

Yours sincerely

Lauren Scott

Human Resources Manager (Acting)”

(iv) The claimant’s arrangements were periodically renewed during the secondment period and his secondment was therefore not open-ended. The tribunal is also aware that there is a paucity of authority in relation to secondments although both the claimant and PONI were in agreement with the statement referred to in paragraph 31 of the Honourable Lady Smith’s judgement in Dr C Fitton v City of Edinburgh Council (“Fitton”) (UKEATS/0010/07/MT) as follows:-

“Mr Fairly adopted the description of “secondment” set out in the case of Capita Health Solutions – v – BBC and Anr UKEATS/0034/07/MT

at paragraph 44:

“… secondment in its proper sense … connotes a temporary assignation regarded, at least at its outset, as being on the basis that the employee will return to work directly for the seconding employer.””

(v) The claimant was aware of PONI’s grievance policy but chose not to submit a grievance to PONI until 12 December 2011. The last relevant issue raised by the claimant before submitting his grievance was in October 2008 when he requested PONI to support a return flight for his wife to accompany him on business travel, which was refused. The claimant waited until he knew that he had secured a position with PSNI before raising his substantive grievance and presenting a claim to the tribunal. There is insufficient evidence before the tribunal to support his claim that, in terms, his secondment position would somehow have been prejudiced had he chosen to pursue his grievance at an earlier date. The tribunal is satisfied that the claimant hoped to achieve an negotiated settlement pursuant to lodging his grievance.

(vi) The claimant had referred in his evidence to commuting between Birmingham and Belfast on a weekly basis, although in an email to Deborah Masterson dated 8 January 2007 he refers to commuting between Belfast and Birmingham on a weekly basis. The tribunal is satisfied on the totality of the evidence before it that the claimant relocated back to Northern Ireland in 2003.

The Law

6. (1) Article 3 of the 1996 Order provides as follows:-

“(1) In this Order “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

(2) In this Order “contract of Employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether oral or in writing.

(3) In this Order “worker” means an individual who has entered into or works under (or, where the employment has ceased, worked under ) -

(a) a contract of employment, or

(b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;

and any reference to a worker’s contract shall be construed accordingly.

(4) In this Order “employer”, in relation to an employee or a worker, means the person by whom the employee or worker is (or, where the employment has ceased, was) employed.

(5) In this Order “employment”

(a) in relation to an employee, means (except for the purposes of Article 206) employment under a contract of employment, and

(b) in relation to a worker, means employment under his contract;

and “employed” shall be construed accordingly.”

(2) Article 45 of the 1996 Order, insofar as relevant, provides as follows:-

“Right not to suffer unauthorised deductions

(1) An employer shall not make a deduction from wages of a worker employed by him unless -

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.”

(3) The tribunal was also assisted by the Employment Appeal Tribunal case of Commissioner of Police of the Metropolis – v – Lowrey-Nesbitt (1999) ICR401 (“Lowrey-Nesbitt”). That case involved the applicant, Angela Lowrey-Nesbitt who made a complaint to an industrial tribunal that her employer, the Commissioner of Police of the Metropolis, had made an unlawful deduction from her wages contrary to Section 13 of the Employment Rights Act 1996. In his judgement Morison J referred to the provisions equivalent to Articles 3 and 243 of the 1996 Order. Although the claim was made by a police officer serving in the Metropolitan Police Force the appeal raised the question as to whether such a police officer was a “worker” within the meaning of the Employment Rights Act 1996.

Having reviewed the relevant case law Morison J, at page 6 of the judgement, states as follows:

“It seems to us that a fair reading of these cases leaves no room for doubt as to what the position is. Whether as a matter of public policy, or because of the nature of his duties as a constable who has taken an oath, or because a police officer is an office holder, there is no room for any further argument short of the House of Lords for the proposition that a police officer is in an employment relationship with anyone.

This conclusion is strongly reinforced by the statutory framework which indicates Parliament’s acceptance that, absent some express provision, a police constable (other than a constable serving in one of the statutory forces) is not someone who works under a contract for personal services or a contract of employment. The Police Act 1996 provides by section 88(1) that the chief officer of police is liable “in like manner as a master is liable in respect of torts committed by his servants in the course of their employment.” If constables were employees this provision would have been unnecessary … As a matter of public policy, their relationship with the police service is governed and only governed by statute. In performing their duties they must abide by their oath of office. In these circumstances we are quite satisfied that there is no room for the implication of a contract of employment. Apart from which, in the case of the Metropolitan Police there would be a problem as to the identity of the employer having regard to the role of the receiver. But that is a minor point of comparison with the more important considerations to which we have referred.”

The tribunal also considered the case of Fitton which was also referred to it by PONI’s counsel.

(4) The tribunal has outlined certain provisions of the Police Act at the outset of this decision. Paragraph 8(5) of Schedule 3 to the Police Act states as follows:-

“The Ombudsman shall be liable in respect of torts committed by members of a police force in Great Britain on relevant service in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and shall in respect of any such tort be treated for all purposes as a joint tortfeasor”.

This mirrors similar wording in the extract quoted above Morison J’s judgement in Lowrey-Nesbitt relating to Section 88(1) of the Police Act 1996 and his conclusion that “if constables were employees this provision would have been unnecessary”.

Submissions

7. The tribunal carefully considered the oral and written submissions of the claimant together with the oral submissions made by counsel for PONI.

Conclusions

8. The tribunal, having applied the principles of law to the facts as found, concludes as follows:-

(i) PONI was not the claimant’s employer and the claimant was not an employee or worker as defined in Article 3 of the 1996 Order.

(ii) The remainder of the issues do not therefore fall to be considered further by the tribunal, notwithstanding its factual findings including the finding that the claimant relocated to Northern Ireland in 2003.

(iii) The claimant’s claim is therefore dismissed.

Chairman:

Date and place of hearing: 3 July 2012, 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 >> Wimpress v Office of the Police Ombudsman... [2012] NIIT 00713_12IT (27 July 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/713_12IT.html Cite as: [2012] NIIT 713_12IT, [2012] NIIT 00713_12IT

Industrial Tribunals Northern Ireland Decisions