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04/04/2000

R v. Sussex Police Authority, Ex Parte Gail Stewart

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Court of Appeal

Within the meaning of the Police Pension Regulations 1987, a police officer's "ordinary duties" included operational duties. * Leave to appeal to the House of Lords refused.
 
Appeal against a decision of Dyson J on 29 November 1999 upholding a decision by the Sussex Police Authority ('the authority') on 18 September 1998 to issue a notice under reg.K1(2) Police Pension Regulations 1987 SI 1987/257 finding that the appellant was fit for duties within the police force and formally offering her her former job. The appellant was a police officer who had been retired on pension on the ground of being permanently unable to perform the ordinary duties of a member of the force due to disability (per reg.A12(2) of the Regulations). Under the Regulations, if it was later found that the officer's disability had ceased, the police force could terminate the pension and invite the officer to rejoin the force. Following an examination by the police authority's medical advisor the force contended that the appellant was now able to perform police duties, albeit essentially sedentary work in an office, and therefore was no longer disabled and could rejoin the force. The appellant submitted that the ordinary duties of a member of the force included operational duties, which she could not perform. The issue on appeal was the definition of "the ordinary duties of a member of the force" within the context of the Regulations. The court below had found that Parliament had not intended to prohibit a police authority from recalling to service a person who was able to carry out most, but not all, of the duties ordinarily performed by the entire police force.
HELD: (1) The Regulations were first drafted in 1948 and it was clear that the "ordinary duties" referred to in those regulations were the same as the "duties of his/her office" for which officers had to be "fitted both physically and mentally to perform". That description was referring to the duties of the office of a constable and the re-issue of Halsbury's laws stated that those duties remained the same as they were in the 17th Century, in which the first duty was to prevent a crime. (2) Whilst several police jobs did not require physical fitness, it was meaningless to interpret "ordinary duties" as meaning any job in the police force. The hypothetical member of the force whose ordinary duties the Regulation must have had in mind was the holder of the office of constable who may properly be required to discharge any of the essential functions of that office, including therefore operational duties. (3) The argument that the instant interpretation allowed officers to exploit the Regulation was unfounded, as it was the force that could compulsorily retire an officer on grounds of disability, and the officer could not compel that retirement. The construction favoured by the Court of Appeal would allow the police authority to retain any officer it wished to retain and at the same time enable it to ensure it had as many fully fit officers as the force required, such as in time of emergency. (4) Within the meaning of the 1987 Regulations, a police officer's "ordinary duties" included operational duties and the appellant therefore remained disabled under the regulations. The notice served on the appellant under reg.K1(2) was invalid and the appellant was entitled to remain retired from the force and to draw her pension.
Appeal allowed.

[2000] ICR 1122 : [2000] Po LR 76 : (2000) 97(18) LSG 37

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