Employment

Section 42 of the Equality Act 2010, conforming with Directive (EC) 2008/78, was plainly meant to provide police constables with the right to complain of discrimination to an employment tribunal. The Supreme Court, in allowing the former police officer appellant’s appeal against dismissal by the respondent Metropolitan Police Commissioner, held that the tribunal was not barred by the principle of judicial immunity, where the allegedly discriminatory conduct was that of persons conducting a misconduct hearing, namely the Police Appeals Tribunal, as had been so in the present case.

Background

In 2010, the appellant was assaulted whilst serving as a police officer for the respondent Metropolitan Police Commissioner. The appellant subsequently suffered post-traumatic stress disorder (PTSD). In 2011, she was involved in an incident which led to her arrest. She asserted that her behaviour on that occasion was related to her PTSD. After investigation, the appellant was made subject of a disciplinary charge before a misconduct hearing constituted under the Police (Conduct) Regulations 2008 SI 2008/2864. Apart from one issue of fact, which was resolved in her favour, the appellant accepted that she had been guilty of the misconduct alleged. In November 2012, the appellant was dismissed without notice.

The appellant appealed against her dismissal to the Police Appeals Tribunal (PAT) and instituted proceedings against the Commissioner in an employment tribunal (ET) under the Equality Act 2010 (EqA 2010), in which she claimed that the decision to dismiss her constituted discrimination arising from disability and disability-related harassment, and had been consequential upon a failure to make reasonable adjustments. The Commissioner contended that the decision, and acts done by the panel of the PAT in the course of the proceedings, were protected from challenge by the principle of judicial immunity. In June 2013, the PAT made a final determination that the appeal would not proceed.

The ET struck out the appellant’s claim on the basis that the panel was a judicial body, and that since the appellant’s claim had been to the effect that its decision and the process by which it had been reached were unlawfully discriminatory, the claim was barred by judicial immunity. The Employment Appeal Tribunal (EAT) dismissed an appeal against the ET’s decision after applying the decision of Heath v Metropolitan Police Comr [2004] All ER (D) 359 (Jul) (Heath). The Court of Appeal, Civil Division, dismissed a further appeal on the basis that the appellant’s case was indistinguishable from Heath. The appellant appealed.

Appeal allowed.

Issues and decisions

Whether the enforcement of the directly effective right of police officers under European Union law to have the principle of equal treatment applied to them by means of proceedings in the ET was barred by the principle of judicial immunity, where the allegedly discriminatory conduct was that of persons conducting a misconduct hearing.

There could be no question of the United Kingdom being entitled to deny police officers an effective and equivalent remedy, where their rights under Directive (EC) 2008/78 (the Framework Directive) had been infringed, as a matter falling within a national margin of appreciation. Nor, indeed, had it been suggested that there could be. On the contrary, the right not to be discriminated against on grounds including disability was a fundamental right in EU law. It followed that, even if it was designed to protect the officer under investigation, the creation of a statutory process which entrusted disciplinary functions in relation to police officers to persons whose conduct might arguably attract judicial immunity under domestic law could not have the effect of barring complaints by the officers to an Employment Tribunal that they had been treated by those persons in a manner which was contrary to the Framework Directive. National rules in relation to judicial immunity, like other national rules, could be applied in accordance with EU law only in so far as they were consistent with EU law. The reasoning of the Court of Appeal in Heath, in relation to EU law, could not, therefore, be regarded as correct (see [30], [36] of the judgment).

In the Equality Act 2010, Parliament sought to implement the Framework Directive specifically in relation to police officers. Section 120 of the Equality Act conferred jurisdiction on an ET to determine any complaints relating to contraventions of Part 5, Equality Act. Those provisions plainly conferred on police constable the right to bring proceedings before employment tribunals in order to challenge discrimination by chief officers and responsible authorities in relation to employment and working conditions, including dismissals. It had been presumably envisaged by Parliament that the exercise of disciplinary functions in relation to police officers would fall within the scope of those provisions. That was indeed the case in relation to senior officers and probationary constables (see [31], [36] of the judgment).

The problem was that the disciplinary functions in relation to police officers who had completed their period of probation, other than senior officers, were entrusted under secondary legislation to panels; and the exercise of those functions by a panel was not an act done by either the chief officer or the responsible authority. Nor could the exercise of those functions generally be regarded as something done by an employee of the chief officer or of the responsible authority in the course of his employment within section 109(1) of the Equality Act 2010, bearing in mind that the panel exercised its most significant functions collectively, and that, at least, those of its members who were police officers would not be employees. Nor could the panel be regarded as exercising its disciplinary functions as the agent of the chief officer or the responsible authority, within the meaning of the section 109(2). The consequence was that, if the section 42(1) was read literally, it was deprived of much of its practical utility, and it failed fully to implement the Framework Directive, contrary to its purpose (see [32], [36] of the judgment).

The way to resolve the problem was to interpret section 42(1) of the Equality Act as applying to the exercise of disciplinary functions by misconduct panels in relation to police constables. That ran with the grain of the legislation, and was warranted under EU law (see [33], [36] of the judgment).

For those reasons, the reasoning in Heath in relation to EU law was unsound, the appeal would be allowed, and the appellant’s case remitted to the ET. It remained the consequence that in relation to discrimination there existed considerable potential for parallel or collateral proceedings in an ET and the statutory PAT. The former could grant relief relating to discrimination, but could not direct an alteration to the outcome of the disciplinary proceedings. The latter could grant discrimination-related relief, and did not have the expertise of an ET in that area, although it could and should consider any suggested discrimination when hearing an appeal against that outcome. The inconvenience was well illustrated by the present case, in which the appellant’s complaint of discrimination had been explicitly limited by her to the outcome of the disciplinary proceedings (see [35], [38] of the judgment).

Heath v Metropolitan Police Comr [2004] All ER (D) 359 (Jul) criticised.

Decision of Laws, Lewison and Christopher Clarke LJJ [2016] All ER (D) 147 (Jan) Reversed.

Karon Monaghan QC and Edward Kemp (instructed by Slater & Gordon (UK) LLP) for the appellant.

Thomas Linden QC and Jese Crozier (instructed by the Metropolitan Police Service) for the Commissioner.

Paul Bowden QC (instructed by Equality and Human Rights Commission) for the first intervening Equality and Human Rights Commission.

Rasheed Sarpong Solicitor