London Fire and Emergency Planning Authority, R (on the application of) v The Secretary of State for Communities and Local Government

An appeal under Part 4 of the Fire Services (Discipline) Regulations 1985 gives the Secretary of State a full appellate jurisdiction, not merely a power to review whether the fire authority acted reasonably. The Secretary of State may decide whether the sanction was appropriate in all the circumstances, but must give reasons adequate to explain disagreement with dismissal imposed after two internal decisions. Any substituted award must remain within the awards authorised by regulation 11, including its limits on stoppage of pay and the requirement for separate awards for separate offences. Reasons supplied retrospectively may elucidate, but cannot generally repair, inadequate original reasons. Decisions based on a misunderstanding of the authority’s case or on an unlawful penalty will be quashed.

The Authority sought judicial review of decisions allowing the disciplinary appeals of two dismissed fire officers. The officers had undertaken, or assisted with, outside fire-safety consultancy work through Safesmart Limited, contrary to restrictions on outside employment and the Authority’s mandatory Personnel Note.

The Authority’s internal disciplinary tribunal upheld findings of misconduct and dismissal. On appeal under Part 4 of the Fire Services (Discipline) Regulations 1985, the Secretary of State substituted a reduction in rank for Mr Williams and three months’ stoppage of pay with a final warning for Mr Slater.

The central issues were the nature of the Secretary of State’s appellate jurisdiction, whether the substituted awards complied with the Regulations, whether adequate reasons were given, and whether the decisions were affected by legal or factual errors.

1. The claim succeeded. The Secretary of State’s decisions allowing both appeals and substituting lesser awards were quashed. The appeals were remitted for fresh determination.

2. Under Part 4 of the Fire Services (Discipline) Regulations 1985, the Secretary of State exercises a true appellate jurisdiction. The function is not confined to reviewing whether the Authority’s decision fell within the range of reasonable responses. The Secretary of State may determine whether the decision was appropriate in all the circumstances, although the ability to interfere with disputed factual findings may be limited where the appeal is decided on written evidence.

3. The restrictions in Part 3 apply to substituted awards under Part 4. An award must relate to a single offence, and the Secretary of State cannot impose an award which the Authority could not itself have imposed. The Williams decision therefore failed to comply with the requirement for separate awards, although that defect alone would not have justified quashing because it caused no apparent substantive prejudice. The Slater award was unlawful because three months’ stoppage of pay exceeded the regulation 11(4) maximum of one-seventh of pay for a pay period.

4. The Secretary of State was under a duty to give reasons appropriate to a true appeal. The original reasons did not explain why dismissal was too harsh despite the seriousness of the offences, the aggravating involvement of other officers, and the Authority’s two decisions upholding dismissal. The phrase interests of justice was uninformative.

5. The expanded reasons could not be relied upon to justify the decisions. They were prepared a year later, without a contemporaneous record of the decision-making meeting and after the challenge had been formulated. They did, however, reveal defects. The Secretary of State proceeded on a mistaken view of the available sanctions and misunderstood a submission by the Authority that certain facts were relatively trivial only in the context of the standard of proof.

6. The error in the Williams decision also affected the Slater decision. The Minister considered the cases together, the reasons were materially interdependent, and Mr Williams’s offences were accepted to be more serious. The remaining grounds, including perversity, contractual trust and confidence, and failure to consider irretrievable breakdown, were not established.