The Fire Brigades Union, R (On the Application Of) v South Yorkshire Fire And Rescue Authority

A public authority must exercise its statutory functions lawfully, even where compliance is more expensive or is thought to conflict with public safety. A shift system involving continuous duty cannot rely on exceptions to working-time protections unless the statutory conditions, including equivalent compensatory rest, are satisfied. Brief, contingent respite during a prolonged duty period is not equivalent compensatory rest. The court may withhold relief in an appropriate case, but continuing and deliberate illegality weighs strongly in favour of intervention. The authority cannot justify an ongoing breach by relying on budgetary constraints, the consent of some workers or its own assessment that the workers are safe.

The Fire Brigades Union challenged the Authority’s decision to retain Close Proximity Crewing at four South Yorkshire fire stations. The system required firefighters to undertake four consecutive 24-hour shifts, including night-time availability at the station, followed by four days off. Firefighters received additional pay and could opt out of the average 48-hour working week.

The Union argued that the system breached regulations 6 and 10 of the Working Time Regulations 1998. The Authority relied on statutory exceptions, alternative remedies, delay, hardship, public safety and good administration. The central issues were whether the system was unlawful and, if so, whether relief should be withheld.

1. The application was allowed. The court declared that the Authority’s CPC shift system was contrary to firefighters’ rights under regulation 10 of the Working Time Regulations 1998. The court declined to declare conduct criminal under regulation 6 and considered that no further relief, including quashing the IRMP, was necessary.

2. The decision in Mansell was not binding in the judicial review proceedings, but its findings on contravention were not obiter because they were necessary to the statutory employment claims. The court nevertheless considered the tribunal’s reasoning with high respect and was entitled to determine the legal issues independently.

3. Firefighters working CPC shifts were night workers and their night-time availability at the station constituted working time. The system therefore exceeded the average eight-hour limit in regulation 6. The continuity-of-service exception in regulation 21(c) was unavailable because the relevant need had to arise from the workers’ activities, not merely from the employer’s need to maintain service. In any event, regulation 24 was not satisfied: contingent respite after occasional call-outs was not equivalent compensatory rest.

4. Regulation 22(a) did not apply because the four 24-hour periods formed a single shift pattern rather than a change from one shift to another. Regulation 10 was therefore engaged, and the CPC system plainly failed to provide 11 consecutive hours’ daily rest. The exceptions in regulations 21 and 22 could not assist because the requirements of regulation 24 were also unmet.

5. The court rejected arguments based on alternative remedies, delay, workers’ preferences, financial savings and public safety. The illegality was continuing and the Authority had a concerted plan to continue it. The Authority could not perform one legal duty by breaching another; if the statutory balance was defective, the remedy lay with Parliament.