McCalman & Anor, R (on the application of) v West Yorkshire Fire and Civil Defence Authority

A regular firefighter remains within the statutory pension scheme only while his appointment terms require, or permit, him to be required to engage in firefighting. Permanent incapacity for firefighting is disablement under Rule A10, even where the firefighter can perform light or non-operational duties. An authority cannot avoid the consequences of compulsory retirement by ordering a firefighter to undertake a materially different job. Where operational firefighters are ordered into non-operational employment because of disablement, they have been required to retire from their former employment for Rule A15 purposes. The court left unresolved whether Rule A15 confers a discretion to retain a permanently disabled firefighter.

The Authority appealed from declarations made by Burton J on the judicial review applications of two whole-time operational firefighters. Each had suffered a serious back injury and was permanently unfit for operational firefighting, but was considered capable of non-operational work.

The Authority required Mr Lockwood to undertake non-operational duties and dismissed Mr McCalman after he refused a similar instruction. It argued that both remained regular firefighters under the Firemen's Pension Scheme Order 1992, that they were not disabled because they could perform some duties, and that Rule A15 gave an unfettered discretion whether to retire them. The central issues concerned the meaning of regular firefighter, disablement, and being required to retire.

1. Appeals dismissed. The declarations that both applicants were permanently disabled, had been required to retire as regular firefighters, and were entitled to ill-health awards were upheld. The Authority was also required to determine the outstanding injury-award questions.
2. A regular firefighter is a whole-time brigade member appointed on terms under which he is or may be required to engage in firefighting. The reference to those terms is current, not merely historical. A person transferred permanently to control-room or non-operational duties is outside the Scheme’s definition. This construction was supported by the Scheme’s early retirement ages, high contributions, generous benefits, statutory establishment requirements, disciplinary and appointment regulations, and contractual documents.
3. Under Rule A10(2), disablement means incapacity for the performance of the essential duties of a regular firefighter. Firefighting is an essential duty. The ability to perform light or ancillary duties does not prevent a finding of permanent disablement. Rule K1(3), the structure of the Scheme, and the decision in R v Sussex Police Authority, ex p Stewart supported that conclusion.
4. The Authority’s instructions were orders, not offers. They required the applicants to undertake jobs materially different from their contracted operational employment. Although the word retirement was not used, the effect was to end their former employment as regular firefighters because of permanent disablement. It was unnecessary to decide whether the change also amounted to dismissal.
5. The question whether Rule A15(1) gives an authority a discretion not to retire a permanently disabled firefighter did not arise. The court expressed no concluded view, although such a discretion, if it exists, was likely to be very limited in practice, particularly in light of section 19(4) of the Fire Services Act 1947.
6. The application for leave to appeal to the House of Lords and the application for a stay were refused. The appeals were dismissed with costs.

• Court of Appeal (Civil Division) — The Authority appealed from declarations made by Burton J on 4 May 1999. The appeals were dismissed with costs: [2000] EWCA Civ 3034.