The Working Time Regulations (WTR) state that workers are entitled to certain rest periods. In R (on the application of the Fire Brigades Union) v South Yorkshire Fire and Rescue Authority, the High Court held that a shift pattern designed in deliberate breach of the WTR was unlawful, even though only volunteers worked under it.
Thompsons was instructed by the FBU to represent its members.
The Fire and Rescue Authority for South Yorkshire introduced a shift system known as Close Proximity Crewing (CPC) at four fire stations in March 2012. As the system involved working 96 hours of continuous duty (with a period of compensatory rest if they were called out at night), anyone who volunteered to work CPC shifts had to sign an opt-out from regulation 4 of the WTR. Those who did, received an additional 30 per cent on top of their basic salary plus an annual payment.
In 2015, members of the FBU brought a claim (Mansell v South Yorkshire Fire and Rescue Service, weekly LELR 564) which found that the CPC system breached the WTR. The authority did not appeal the decision but nor did it comply with it. Following publication of the fire authority’s risk management plan in 2017 in which it refused to exclude use of the CPC system, the FBU brought an application for judicial review arguing that the CPC shift system breached regulations 6 and 10 of the WTR.
Regulation 4 states that a worker’s maximum working week should not exceed an average of 48 hours, unless they have agreed in writing to opt out.
Regulation 6(1) stipulates that a night worker’s normal hours should not exceed eight hours in each 24-hour period. Although workers cannot opt-out from the provision, nor bring a tribunal claim if it is breached, regulation 6(2) requires employers to take “all reasonable steps” to comply with the limit.
Regulation 10 states that workers are entitled to a rest period of not less than 11 consecutive hours in each 24-hour period of work. Regulation 22 disapplies regulation 10 in the case of shift workers who change shift and cannot take a daily rest period between the end of one shift and the start of another.
High Court decision
With regard to the question about the lawfulness of the CPC system, the High Court held that it was not contrary to regulation 4 and compliance was ensured by firefighters signing an opt-out.
As for regulation 6, the Court held that it was clear that the limit of eight hours in each 24-hour period was exceeded by CPC and that the authority had not provided the required compensatory rest. However, it held that as the only remedy for enforcing it was through regulation 6(2) and the criminal law, it concluded that it would not “grant any relief” because to do so would be to declare that the conduct of the authority was criminal and it was not prepared to go that far without proper procedural safeguards being followed.
With regard to regulation 10, however, the Court held that the authority’s position was not defensible. Indeed the judge said that he could not see how the CPC system, in its current form, could operate lawfully in conjunction with regulation 10 as the breach was “blatant and obvious”. The exception in regulation 22 was irrelevant as it only applied to shift workers who changed from one shift pattern to another – such as from night to day shift. That did not apply here as each of the four shifts of 24 hours represented a single shift.
It therefore granted a declaration that the Authority’s CPC shift system was contrary to the rights of firefighters under regulation 10.
The use of CPC has been a major concern for the FBU for several years, particularly with regard to the effects of fatigue which arise from working for four consecutive 24-hour periods. This case has been closely followed by other Fire and Rescue authorities operating CPC and with no appeal being made they must now examine their own positions. As the judge put it in the decision:
“I appreciate that the Authority is doing its best to promote public safety and cope with severe budget cuts … But I do not feel able to refuse relief where there is a conscious decision to commit a continuing and systematic breach of the law. You cannot perform one legal duty by breaching another.”