• The PSNI Employees ~ The Prelude;

• PSNI employers Appeal Belfast High Court Judgment;

• PSNI Errors;

• Consequential Law including Interest on the established debt?

• EU/ECHR ‘Principles of Equivalence’ & ‘Principles of Mutual Recognition’

• Parallelism;

• The Principles of Equivalence;

• Lessons to be drawn from the PSNI Case.

In 2015 following many years of irritation and discontent over the ‘methodology’ being applied to their pay the civilian staff allied with their equally frustrated uniformed colleagues [Employee Appellants] in the organisation took joint legal action via their respective unions to correct a perceived injustice.

This finally ended after the application of ‘due process’ at the UK Supreme Court with its penultimate Judgment for the Employee  Appellants on the 4^th October 2023 with the application of ECHR Case Law and Rules by the UK Supreme Court ~ which had no  other choice in Law ~ both local and International.

What attracted the Bugler’s attention to this now established further ECHR Case Law, with its firm ECHR overtones which had to be applied by the UK Supreme Court was its immediate resonance to the continuing experience of the Bugler and his 7000 disabled Firefighter Veterans and their 30,000 Beneficiaries.

Albeit this was, and is, a case which had commenced in 2006 continuing without any form of applied ‘due process’

during the trudge on the familiar ‘hardship route’ to the English High Court with its predicted and predictable application of silent obmutescence, stone walling, withering on the vine of life, and lack of common decency or courtesy in refusal .

Indeed this case still continues 17 years later.

True to its tradition of Fair Play and Justice, demonstrated earlier to the Bugler, the Belfast High Court found in the first instance for the Employee Appellants but whom were then predictably rejected following an Appeal by the PSNI Employers to the English High Court.

This finally leading to another contra Appeal by the Employee Appellants to the UK Supreme Court which they won.

It does seem, based on ruthless experience, that English Lady Justicia is extraordinarily capricious and elusive within the ranks of the English Judiciary.

Or perhaps it is another anti ‘Greek’ frisson the allegorical Lady Justice being based on the Greek Goddess Themis ~ honored as clear-sighted ~ or perhaps the Roman Goddess Justicia ~ honoured for representing the Virtue of Justice.

The Lady is blindfolded because Justice is unbiased and should not be based on a person’s appearance or any other ethnic consideration.

Originally the Civilian Staff and Uniformed Officers Unions in conjunction had both made claims of a breach of ECHR Convention Article 14 by the PSNI in that they had in discrimination breached the ‘Principle of Equivalence’ under the Convention of Article 14 and its developed Case Law.

The clear objective of this PSNI Appeal to the UK Supreme Court in challenging the Belfast High Court Judgment was to save the PSNI significant restitutional compensation which they would have to pay back to 1998 which under their Appeal proposals would be significantly lower but which in the reality of the Belfast High Court  Judgment would be significantly higher, as we shall see.A restitution which will include 8% compound interest on the established PSNI debt.

Parties also jointly sought Legal Guidance from the UK Supreme Court on Points of Law.

The UK including Northern Ireland remains an active signatory to the European Convention of Human Rights since 1953 in fact it was a founder Member State.

Firstly, part of the PSNI Appeal was about the period for restitution which had been decided by the Belfast High Court would be back to 1998 and the methodology now proposed by the PSNI Appeal was to arrive at a much more limited time period and thus the amount of restitution would be reduced which was in effect a cost saving exercise.

Secondly, the Claimants on their part were seeking legal clarifications on the technicalities used by the PSNI to underpay them in the first place? The point being they did not want to be ‘short changed’ for a second time by the PSNI. 

The UK Supreme Court Judgment when it was delivered proceeded to clarify a number of these important technical legal points on the proper methodology of pay calculation which ought to have been used by the PNSI in the first place to produce the Claimants’ ‘holiday pay’.

For many years both the Civilian staff and their Uniformed colleagues in Northern Ireland have been paid holiday pay based on their basic rate of pay rather than their ‘normal pay’ which included overtime.  This was a principle point at contention.

Civilian staff were able to bring their claims under the ‘unlawful deductions’ provisions of the Employment Rights (Northern Ireland) Order 1996, which are identical to the unlawful deductions provisions in the Employment Rights Act 1996 covering the remainder of the UK  and could thus claim in respect of a series of deductions potentially going back as far as 1998.

Thirdly, another principle issue for the Claimant’s in seeking clarification was whether Uniformed Officers, not being ‘workers’ in the true traditional sense, could also rely on the same provisions the  ‘Principle of Equivalence’ their Civilian colleagues had relied upon to be 100% successful with their cases.

Firstly, the UK Supreme Court ruled against the PSNI & Board Appeal, insisting that the PSNI must recompense their Civilian Staff and their Uniformed colleagues back to 1998.

Secondly, whilst significantly recognising and applying the EU/ECHR ‘Principle of Equivalence’, the UK Supreme Court upheld the decision of the Belfast High Court that Uniformed Officers were entitled to claim in respect of a series of deductions and thus could also claim in respect of the underpayment of their holiday pay back to 1998.

Thirdly, the UK Supreme Court also ruled the Claimants were not limited by time to the period of three-months leading into the presentation of their claims to the Employment Tribunal.

Fourthly, disapproving[disagreeing with] the decision of the Employment Appeal Tribunal  in Bear Scotland Ltd v Fulton the UK Supreme Court held that a relevant series for the purposes of a claim of unlawful deductions was not necessarily broken by a period of three-months between such deductions.

Fifthly, the UK Supreme Court continued stating that the PSNI had made a series of unlawful deductions, each being factually linked to its predecessor by the common fault, or unifying, or central error that holiday pay had been calculated by reference to ‘basic’ pay rather than ‘normal’ pay.

Finally, the series was not broken by a lawful payment of holiday pay if the lawful payment came about, as it did from time to time, because the workers concerned were not paid overtime in the reference period and so were not in fact underpaid.  

The UK Supreme Court as requested by the joint parties also gave guidance on some consequential Points ~ of ~ Equivalence.

When a ‘worker’ takes annual leave, no distinction is to be drawn between what is known as ‘EU leave’ – the four weeks annual leave mandated by EU law – and the additional 1.6 weeks’ leave required by domestic UK law.

All the leave to which a worker is entitled must form part of a single, composite pot, and when calculating the daily rate of normal pay, it is not appropriate to use the number of calendar days in a year. The maintenance of remuneration and what constitutes normal remuneration is a question of fact, just as the reference period is a question of fact, and both should be addressed with evidence in individual cases.

As well as resolving important Points-of-Equivalence, this Judgment has enormous implications for the PSNI in that if the Appellants the PSNI & Board had succeeded in their Appeal the likely cost of remedying their failure to properly calculate pay was in the region of £300,000.  

However, as a result of this UK Supreme Court Judgment, it is now likely to cost in excess of £30mil to £40 million depending on how the final calculations are made based on each individual employee’s compensation.

 In this respect what is to be borne in mind is the introduction into individual employee’s compensation calculations of the Statue Law of ‘Late Payment of Commercial Debts [Interest] Act 1998’ which enshrines the right to use in such calculations the use of 8% compound interest on the Late Debt set against the current Bank Rate in operation which is revised every 6 months.

What seems to have been missed in the Supreme Court  Judgement are ‘exemplary damages’ which surely ought to have been awarded against the PSNI because of its arbitrary abuse of its powers as a local authority in ‘making up’ its own pay formulae as it went along?

Without having access to the full papers of this Court case the Bugler is drawn from time to time to make small reasonable conjectures, for example, the Plaintiffs, namely, the Civilian Staff and their Uniformed colleagues brought their case forward under Article 14 of the UK Human Rights Act 1998[as amended] on the basis that they were being treated less equitably and favourably than their colleagues throughout the remainder of the UK. In other words they were being paid less and treated less favourably than others for effectively the same role.

 In effect the PNSI was arbitrarily running its own system of remuneration. A discrimination to its financial benefit and to the financial detriment of its employees and that is what this Judgement confirmed.

 In conclusion the UK Supreme Court had no choice on the PSNI Appeal before it; because it immediately recognised that it was required to apply these ‘Principles of Equivalence’ and its associated ‘Principles of Mutual Recognition’; as indeed did the Belfast High Court before them to its credit.

This was because the UK was a founder Member of the European Convention of Human Rights[1951-1953] of which it continues to be a Member.

To do anything less than to recognise and implement these ‘Principles’ would be to contradict its continuing Membership of the Convention and to abrogate its International commitment and duties to the Convention which the UK signed up to in 1953. Indeed the current President of the UK Supreme Court sits on an ad hoc Committee of this Convention…

For the full Judgement of the UK Supreme Court, Go Here.

What was particularly significant to the Bugler concerning this Article 14, UK Supreme Court Judgement was its clear parallelism with the anticipated Application [case], to be brought before the ECHR Court at Strasbourg by the disabled UK Firefighters and their Beneficiaries in the matter of their 25% underpaid pensions since 1992 and also in the light of other breeches to other Articles and Protocols which the FSVs have suffered from to their detriment arbitrarily in an abuse of power imposed by their Local Authority Employers.

 In particular the question of the application of the EU/ECHR ‘Principle of Equivalence’ and the ‘Principle of Mutual Recognition’ which the UK Supreme Court had to and indeed did recognise the ECHR Strasbourg Court as the absolute Legal Supremacy and in any future Firefighters’ pension claim even though it is based on underpaid pensions rather than pay more collectively called remuneration.

But also because the UK is a signatory to the Convention its ‘Principles’ and in particular its developed Case Laws.

The fact is that pensions are also remuneration, pay, albeit in a more complex and hybrid form of remuneration it is nevertheless still as a matter of fact ‘pay’.

OED …remuneration… The earliest known use of the noun remuneration is in the Middle English period (1150—1500). OED’s earliest evidence for remuneration is from around 1400, in Prose Versions New Testament: 2 Cor. remuneration is of multiple origins. Partly a borrowing from French. Partly a borrowing from Latin…. “to pay for services rendered”.

By now the astute Fire Service Veterans[FSVs] who the Bugler represents will have clearly grasped the parallelism which happened to the Staff and Uniformed Officers in the PSNI and that which has happened and continues to happen to the disabled Firefighters and their Beneficiaries within the LFRS,  throughout the UK, and where ever they are domiciled throughout Europe, indeed the World.

 The ECHR Convention Article 14 principally prohibits all forms of discrimination and in this respect it is helpful for the UK FSVs to consult and understand the UK Ministry of Justice 2006 & 2014 Guides to be found in the TMB Library under Year 2014 working their way through each of the 14 Articles and the 3 Convention Protocols[additions and amendments to the Articles] though in point of fact only Protocol 1 applies to the FSVs, namely, “the peaceful enjoyment of their property”. Property in this respect being defined as one’s pension. To be found at Pension Law/Libraries/Correspondence/Year 2014  Go Here.

In effect if done meticulously and thoughtfully  the disabled FSVs and their  Beneficiaries will produce a ‘Victim Impact Statement for themselves and for the attention of the ECHR Court likely to deal with this class action claim.

So what is ‘The Principle of Equivalence’ and the ‘Principle of Mutual Recognition’ [in effect it is a mechanism to promote and advance the aims of the EU/ECHR as a cooperation ~ promoting instrument].

Here are several Definitions of ‘Equivalence’ and a little of its historical development :

Old Oxford English Dictionary definition of “Equivalence”… “Equivalence” (between A and B) the fact or state of being equal in value, amount, meaning, importance, etc.

The ‘Equivalence Principle’ is a fundamental law of physics that states that gravitational and inertial forces are of a similar nature and often indistinguishable, that is, as being the same.

Although it has evolved significantly in the European Court of Justice case law, especially in the 1990s, the ‘Principle of Equivalence’ in the context of EU/ECHR law is still based on the fundamental idea ~ put forward in the Rewe decision of 1976 ~  that the protection afforded within a National Legal System of a Member of the ECHR  based Rights must not be less favourable than in the case of individual Rights based on National Law namely the UK Human Rights Act1998[as amended] had, for example, in this anticipated FSV’s case to be placed before the ECHR at Strasbourg, the UK domestic law actually been applied within the UK.

The ‘Principle of Equivalence’ is closely related to the general principle of equal treatment and the prohibition of discrimination from which it is derived. It is also a well-known international legal Principle which, together with the associated ‘Principle of Mutual Recognition’ because it serves as a cooperation-promoting instrument.

This also means regardless of any other breaches of ECHR Articles and Protocols, and there are many in the case of the employers the LFRS, that when disabled UK Firefighters make a claim of underpayment [as in the Police Case] then the expectation will be that the ECHR Court will apply the same remedy under the same “Principle of Equivalence” because if it did not do so it would simply be contradicting itself!

By the ECHR Strasbourg  Court applying the existing case law and any future case brought before the ECHR Court the disabled Firefighters can automatically claim and include this EU/ECHR “Principle of Equivalence” case law because this Judgment reinforces this established principle with further case law[this PSNI case]. This allows the disabled Firefighters to use it as a Principle plank in their justifiable claim, aside from any other aspect of a claim at law e.g, of any other breech of Human Rights and there are quite a few at a passing glance which will also be placed  before the ECHR Court at the same time.

The Bugler writes this against the current backdrop of the Immigrant Boat People and the UK government’s Rwanda dilemma which involves the UK’s implementation of the 1998 Human Rights Act under the ECHR Convention of which it is since 1953 a Member State:

• The 11,000 disabled Firefighters and their 30,000 Beneficiaries are by no stretch of a ludicrous imagination Immigrants.

• They are bona fide Citizens of the UK who have been and are continuing to seek ‘due process’ under the local 1998 Human Rights Act which is empowered in UK Statute Law by reflecting the UK’s membership of the ECHR Convention in particular Articles 6 and 14. 

• The latter being demonstrated by the recent successful Judgement in the UK Supreme Court of the case of PSNI Employees against their Employers who had cited Article 14 as the basis for their case.

• This case was successful because the UK Supreme Court had no option but to yield to the ECHR and implement the Rules and Case Law of the Convention in particular the Principle of Equivalence.

• The Question is can these disabled Firefighters use the Principle of Equivalence and Parallelism in a proposed Complaint to the Strasbourg Court when at first glance there does not  appears to exists comparative data to support either Equivalence or Parallelism?

• The answer is yes they can by applying the Law correctly to produce data which can be set against the pension remuneration they are actually receiving.

• If the UK Judiciary had properly followed ‘due process’ to exhaustion concluding with a Judgment at the Supreme Court, which it did not, which commenced with its failure to respond to an Appeal lodged against Justice Fancourt Judgement which was clearly wrong in Law.

•Justice Fancourt’s recorded statement that “Paragraph 5 took some reading…” said it all.

• Supplemented by the complete failure of the Supreme Court to deal with a subsequent ‘Extraordinary Appeal’, which is a permitted procedure, by the Firefighters to this Court which produced no Judgement whatsoever.

• Had both the UK Court of Appeal and the UK Supreme Court acted with integrity in ‘due process’ they would have been in the position to read these Appeals and evidence submitted to them which included comprehensive Opinions on LCFA/LFRS malfescence and how, had the Law been correctly applied by them in the first instance, this would have produced the correct Pension remuneration to be paid to Lancashire Pension Fund Members to enable the application of Equivalence.

• Thus comprehensive data for the use of the Principle of Equivalence and Parallelism in this pending Application by the Bugler et al would ultimately have been available to the Strasbourg Court in the event an Appeal was necessary against any negative Judgement by the UK Supreme Court.