Fighting fire .. with the law

Nottinghamshire and City of Nottingham Fire and Rescue Authority and Lincolnshire County Council v FBU and ors

Although courts can sometimes imply contract terms, the Court of Appeal said in Nottinghamshire and City of Nottingham Fire and Rescue Authority and Lincolnshire County Council v FBU and ors that they would not imply a term that fundamentally changed the nature of the contract.

The FBU instructed Thompsons to act on its behalf.

High Court

The two fire authorities asked the court for a declaration that co-responding was an obligation which could be implied under the terms of the “Grey Book”, a collective agreement between the FBU and employers. This would require fire crews, who are trained first aiders, not paramedics, to stand in for an ambulance if they can get there first, even if the call was only for medical help.

The union, on the other hand, argued that it was opposed to co-responding and had refused to accept it as a contract term during the negotiations to end the national fire dispute in 2002/3. It said that it could not now be implied by the back door.

The High Court agreed with the FBU and the fire authorities appealed to the Court of Appeal.

Sources of the contract

The Court of Appeal was asked to look at a number of documents including Integrated Risk Management Plans (which referred to co-responding but which had no contractual force), Role Maps (which set out the duties of employees in detail) and the Grey Book.

The most recent edition of the Grey Book was published in August 2004, following resolution of the national pay dispute. It is incorporated into all firefighters’ contracts and does not contain a single reference to co-responding.

Background to the dispute

Before looking at the terms of the Grey Book itself, the Court of Appeal said the High Court judge had been right to take the background to the contractual dispute into account. In particular, it said it was relevant that the FBU had reaffirmed its longstanding policy of opposition to co-responding shortly before the Grey Book was amended in 2004.

It thought it unlikely, therefore, that the union’s negotiators had somehow agreed to a contract which, “without actually saying so, commits their members to taking part in co-responding”, as the employers were arguing. It agreed with the High Court judge that these were “men who read small print and are alive to any disadvantage that might accrue to the membership.”

Employers’ arguments

Undeterred, the employers tried arguing that the reference in the preface of the Grey Book to “the reduction of loss of life, injury, economic and social cost arising from fire and other hazards” somehow inferred an agreement to co-responding. The Court disagreed, however, saying that “other hazards” did not necessarily refer to medical emergencies that would only be attended by an ambulance.

Turning to the requirement of firefighters to “provide treatment to casualties” in the role maps, the employers argued that this was really another term for co-responding. The Court agreed it was a role required of them, but that it just referred to the fact that firefighters had always provided first aid to casualties at fires and other emergencies.

The employers then pointed to the national guidance and statutory provisions which encouraged co-responding, but the Court of Appeal said that these had no contractual force. They were simply aspirations on the part of Government and the fire authorities, and had not been agreed with the FBU or individual firefighters.

The employers finally turned to the case of Cresswell v the Board of Inland Revenue, but the Court also rejected that argument, saying that it was only concerned with a new way of doing the same job. Co-responding, on the other hand, “was not a new way of doing fire fighting but it was not fire fighting at all as the contract understood it.”

It concluded that employers can only instruct employees to do what the contract requires them to do. As co-responding could not be implied into the contract, it dismissed the appeal with costs.