Chief Constable of Bedfordshire Polive v Liversidge
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY,Lord Justice Waller,LORD JUSTICE PETER GIBSON,LORD JUSTICE JONATHAN PARKER,LORD JUSTICE LONGMORE |
| Judgment Date | 24 May 2002 |
| Neutral Citation | [2002] EWCA Civ 894,[2001] EWCA Civ 1985 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A1/2001/2180 |
| Date | 24 May 2002 |
[2001] EWCA Civ 1985
IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
The Royal Courts of Justice
The Strand
London
Lord Justice Waller
Lord Justice Sedley
A1/2001/2180
MRS L COX QC and MS I OMAMBALA (instructed by Pattinson & Brewer, 71 Kingsway, London WC2B) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
Tuesday 11 December 2001
Mrs Laura Cox QC comes before us this morning with Miss Omambala to renew an application which I was minded on the papers to reject. Because the issues are so lucidly set out, first in the judgment of the Employment Appeal Tribunal, then again in Miss Omambala's skeleton argument, there is no need to rehearse them now.
Having heard Mrs Cox this morning, I have come to the conclusion that there may well be viable arguments capable of succeeding and not fully addressed by the EAT. That may well not be a criticism of the EAT, because it may very well be that with the case in Mrs Cox's hands, the argument itself has undergone recasting.
Essentially, the problem is that which Lord Justice Waller put to Mrs Cox and she accepted: namely that if the EAT is right, the very source of the great majority of acts of discrimination against serving officers within a police force, both racial and sexual, will not be caught because they will not be committed by the Chief Constable or by the Police Authority but by officers lower down the hierarchy.
It is obviously a question of very great public importance whether or not a chief constable is answerable in such circumstances for acts of discrimination committed by his or her officers. It may be that, notwithstanding what I wrote in refusing permission, section 75(1)(b) of the Race Relations Act gives the necessary purchase upon a case of the present kind, although it will have to be considered whether the office of constable is a statutory office nowadays. It is historically a common law office but it may well be that it is now subsumed in statute, and that constitutional question may have to be addressed. It is of continuing importance because the amendment and the filling of the gap by the Race Relations Act 2000 in relation to the 1976 Act has not been extended to the Sex Discrimination Act 1975 and there, it appears, the same gap continues.
There is also the question whether, independently of the equality legislation, section 88 of the Police Act 1996, and its predecessors in earlier Police Acts, by itself produces a liability of the Chief Constable for what, in Mrs Cox's submission, is a statutory tort and therefore as fully within the vicarious liability principle as common law torts.
All of these matters, it seems to me, afford a compelling reason why the appeal should be heard, particularly since we have been told today that Mrs Liversidge will, if she obtains permission to appeal, have the backing and indemnity of the Police Federation funds something which, if I may say so, seems to me entirely creditable. I am also in a fair way to be persuaded that the appeal would have a real prospect of success, but I pass no judgment upon that issue because it is sufficient for present purposes that, in my judgment at least, it is an appropriate case for grant of permission to appeal.
I agree.
ORDER: Application allowed. Appeal to be heard as soon as possible with a time estimate of a day and a half to two days.
(Order not part of approved judgment)
[2002] EWCA Civ 894
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay Presiding)
Royal Courts of Justice
Strand
London WC2
Lord Justice Peter Gibson
Lord Justice Jonathan Parker
Lord Justice Longmore
A1/2001/2180
MRS LAURA COX QC and MS IJEOMA OMAMBALA (Instructed by Pattinson & Brewer, 71 Kingsway, London, WC2B 6ST) appeared on behalf of the Appellant.
MR PAUL T ROSE QC (Instructed by Bedfordshire Chief Constable, County Hall, Cauldwell Street, Bedford, MK42 9AP) appeared on behalf of the Respondent.
Friday, 24th May 2002
The issue raised by this appeal is whether prior to 2nd April 2000, when the Race Relations Amendment Act 2000 ("the 2000 Act") came into force, a chief constable was liable under the Race Relations Act 1976 ("the 1976 Act") in respect of acts of discrimination committed by his officers against another officer. It is an appeal by Cheryldeen Liversidge, a black woman police constable in the Bedfordshire Police, against the order of the Employment Appeal Tribunal ("the EAT"), Mr Justice Lindsay presiding, on 21st September 2001. Thereby the EAT allowed the appeal of the respondent, the Chief Constable of Bedfordshire, against the refusal of an Employment Tribunal sitting in Bedford to strike out a claim that the respondent was liable for acts of racial discrimination against her by officers in the Bedfordshire Police. The judgment of the EAT is now reported at [2002] IRLR 15. Sedley LJ refused Mrs Liversidge permission to appeal on paper, but on a renewed application this court (Waller and Sedley LJJ) granted permission. We are told that there are 86 other pending cases in which a similar issue is raised. Our decision may also affect cases under the Sex Discrimination Act 1975 ("the 1975 Act"), the provisions of which are strikingly similar to those of the 1976 Act in material respects. The 1975 Act has not been the subject of amendments such as have been effected to the 1976 Act by the 2000 Act.
The factual background can be stated shortly. Mrs Liversidge, acting in person, on 12th August 1999 presented an originating application to the Employment Tribunal, complaining against Bedfordshire Police and PC Fitzgibbon of racial discrimination. She said that between 21st and 24th June 1999 she became aware in the course of her duty that she had been the subject of racial abuse. She claimed that she had been described by her colleagues as "PM" (standing for "porch monkey"), which, she said, was a derogatory term for black women in southern states of America. She said that the matter had been the subject of an internal investigation. So unparticularised were the allegations that Mrs Liversidge on 17th September 1999 was ordered by the Employment Tribunal to give further particulars. On 1st October she gave further details. She alleged that PC Fitzgibbon was the instigator and/or used the term "PM" (standing for "porch monkey") in the course of his employment as a police officer at Dunstable Police Station, referring to her. She was not present when PC Fitzgibbon used the term, but she became aware of its usage in the station by male members of her section when she was approached by a detective sergeant at Dunstable on 23rd June 1999. She said that she had made further enquiries of colleagues to establish that it was PC Fitzgibbon who had used the term about her.
Both the Chief Constable and PC Fitzgibbon denied the allegations. PC Fitzgibbon made counter allegations against her of sexual harassment. The Chief Constable instigated enquiries and brought disciplinary charges against her. Solicitors for Mrs Liversidge presented a second originating application on 16th February 2000. This time she only named the Chief Constable of Bedfordshire as a respondent. She complained of race discrimination and/or victimisation pursuant to section 4(2) and section 2(1)(a) and (b) of the 1976 Act. She alleged that the investigation by the police into her complaint had been inadequate and that the Chief Constable's action in bringing disciplinary charges against her constituted sex discrimination and/or victimisation. She further alleged that the Chief Constable did not investigate her complaint with the same energy, commitment and competence compared with the way PC Fitzgibbon's counter allegations had been investigated.
The Chief Constable denied the allegations in the second originating application. PC Fitzgibbon then presented two originating applications to the Employment Tribunal against the Chief Constable, alleging sexual discrimination by Mrs Liversidge for which the Chief Constable, he said, was responsible.
There was a hearing for directions before a Chairman of the Employment Tribunal on 10th April 2000, when Mrs Liversidge was represented by junior counsel. The decision of the Chairman records her order that Mrs Liversidge's complaint against PC Fitzgibbon was dismissed upon withdrawal. The Chairman also ordered Mrs Liversidge's two originating applications against the Chief Constable to be combined and heard together. She further ordered that PC Fitzgibbon's originating applications be heard by a different employment tribunal on a different date, that being what the legal representatives for Mrs Liversidge and PC Fitzgibbon had sought.
On 6th June 2000 Mrs Liversidge gave further particulars of her originating application. She was asked whom she accused of describing her as "PM" and when they did that. She replied that male members of her section at Dunstable Police Station including PC Fitzgibbon had done so over a period of time. Further particulars were given about the allegations concerning the investigation of her complaints, and Mrs Liversidge has repeated and expanded her allegations in witness statements.
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