Chief Constable of Kent County Constabulary v Baskerville
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,Lord Justice Peter Gibson,LORD JUSTICE PETER GIBSON,LORD JUSTICE KAY,THE VICE-CHANCELLOR |
| Judgment Date | 03 September 2003 |
| Neutral Citation | [2003] EWCA Civ 1354,[2003] EWCA Civ 1094 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/2003/0967,A1/2003/0967 |
| Date | 03 September 2003 |
[2003] EWCA Civ 1094
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
(Employment appeal Tribunal)
Lord Justice Mummery
A1/2003/0967
MR JOHN CAVANAGH QC and MISS SOPHIE GARNER (instructed by County Secretary, Kent County Council) appeared on behalf of the Appellant
The Respondent was not represented and did not attend
This is the oral hearing of an application for permission to appeal. The application is made by the Chief Constable of Kent County Constabulary for whom Mr Cavanagh QC appears.
The application arises in connection with the decision of the Employment Appeal Tribunal on 14 April 2003, dismissing the Chief Constable's appeal against the decision of the Employment Tribunal on 20 July 2002 refusing to strike out, under Rule 15(2)(c) of the Rules of Procedure, a sex discrimination case brought by Miss Baskerville against the Chief Constable.
The Employment Appeal Tribunal refused permission to appeal. An application was made on paper to this court which first came before me in May 2003. At that stage I directed that the application for permission should be adjourned pending the outcome of an application for leave to appeal to the House of Lords from the recent decision of this court in Hendricks. Since then a great deal has happened which has altered the legal scene affecting the issues in this case.
In a supplementary skeleton argument Mr Cavanagh made the point that the whole question of liability of a Chief Constable for alleged acts of discrimination committed by one member of his force against another has been affected by the decisions of the House of Lords. He referred to the decision in Macdonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield School [2003] UKHL 34 and also the decisions in Relaxation Group Plc v Rhys-Harper (conjoined appeals) [2003] UKHL 33. He has also informed me that the petitions to appeal to the House of Lords in Liversidge and Hendricks have both been unsuccessful.
It seems to me that in these circumstances permission to appeal ought to be granted. There are real prospects of success in arguing that the ground on which the Employment Appeal Tribunal dismissed the appeal against the decision of the Employment Tribunal was based on different legal principles than now can be argued on the basis of the House of Lords' decisions in the cases just mentioned. The argument is spelt out in detail in Mr Cavanagh's skeleton argument. All I need say at this stage is that there are real prospects of those arguments succeeding and demonstrating that the Employment Tribunal was in error of law —as the law is now stated —in refusing to strike out the sex discrimination claims against the Chief Constable of Kent.
Mr Cavanagh has also helpfully told me that this appeal is of some general importance. His information is that there are about 60 cases pending which raise this difficult legal issue. Some of them in the Employment Tribunals have been stayed pending the outcome of the appeal from the Employment Appeal Tribunal in this case. That seems to warrant a direction that expedition should be given to the hearing of this appeal. It does not mean that it will be heard this side of October, but a space should be found urgently for the court to hear argument. I estimate that this case will take between a day and a day-and-a-half.
Permission to appeal is granted on the basis of the supplementary skeleton argument, expedition for hearing of the appeal, and one to one-and-a-half days for the oral hearing.
Mr Cavanagh has also asked for leave to amend the grounds of appeal to take on board the new points in the skeleton argument. I grant leave to amend. The draft amendment has been produced to the court.
Order: Application allowed with the appeal to be heard by three-judge court, one member of which to have EAT experience.
[2003] EWCA Civ 1354
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT TRIBUNAL
(The Vice-Chancellor)
(Sir Andrew Morritt)
Lord Justice Peter Gibson
Lord Justice Kay
A2/2003/0967
MR JOHN CAVANAGH QC (instructed by Kent County Council, Kent ME14 1XQ) appeared on behalf of the Appellant
MR ROBIN ALLEN QC (instructed by Russell Jones & Walker, London WC1X 8DH) appeared on behalf of the Respondent
(Approved by the Court)
Wednesday, 3 September 2003
THE VICE-CHANCELLOR: Lord Justice Peter Gibson will give the first judgment.
It has long been recognised that at common law a police constable is the holder of an office and not an employee. This may explain why Parliament thought it necessary to enact special provisions relating to the police in each of the Acts constituting the current discrimination legislation. In the first Act which made express provision against discrimination in the field of employment, the Race Relations Act 1968, it was provided that for the purposes of that Act the office of a constable should be treated as if it were employment, and that for those purposes a constable should be treated as if he were employed by the authority by whom he was appointed (see section 27 (4)). But in subsequent discrimination legislation, commencing with the Sex Discrimination Act 1975 ("the 1975 Act") followed by the Race Relations Act 1976 ("the 1976 Act"), different provisions in what on their face might seem to be more limited form were enacted to deal with the position of the police and the circumstances in which a chief officer of police and a police authority might be liable for discrimination.
The issue raised by this appeal is whether a Chief Constable can be made liable under the 1975 Act for sexual harassment and other acts of discrimination committed by one of his officers against another of his officers.
On 15 June 2001 the respondent, Angela Baskerville, presented an originating application to the Employment Tribunal, complaining against the appellant, the Chief Constable of Kent County Constabulary, of sexual discrimination against her. The appellant applied to strike out the originating application. The Tribunal at Ashford in Kent, consisting of the Chairman, Mrs Valerie Cooney, sitting alone, refused that application. The appellant appealed to the Employment Appeal Tribunal ("the EAT"), but the appeal was rejected by His Honour Judge McMullen QC, sitting alone. The appeal by the appellant to this court is brought with the permission of Mummery LJ.
In her originating application the respondent alleged that when employed as a detective constable at Margate Police Station she was subjected to persistent, unwarranted and unwanted behaviour and remarks from her male colleagues and supervisors of a sexual nature, as a direct result of which she had been off work and suffering from post-traumatic stress disorder. The appellant resisted the complaint on the ground that it was out of time and that the claim was not particularised. In further and better particulars running to 136 paragraphs the respondent spelt out the details of her complaint.
The account of the facts taken from the respondent's pleadings and summarised by the EAT is accepted by the appellant as an accurate account for the purposes of this appeal:
"10. … the Kent constabulary has 3,500 police officers and 1,500 civilian employees. The respondent, who is 30, was engaged as a Police Constable at Kent Constabulary on 6 December 1993. She is now a Detective Constable …
11. The [respondent] went on maternity leave in late 1997. When she returned she contends a series of events began which are, each or together, acts of sex discrimination, including allocation of the [respondent] to particular work, to courses, failing to handle complaints she made, comments on her status, the language and tone of senior officers, sexually offensive comments and a range of other matters in respect of her fellow officers and her supervisors. She was promoted to Detective Constable. She went sick and was prescribed anti-depressants and was eventually admitted to hospital with a suspected stroke. She attributes her condition to the treatment she received."
It was not originally alleged that the appellant personally committed any act of discrimination. However, in the respondent's amended further and better particulars, what were called the legal pleadings were added with the permission of the EAT. It was said in paragraph 1 of the legal pleadings that the respondent believed that the appellant had treated her less favourably than a male officer in the same or similar circumstances, on the grounds of her sex, and in particular with regard to each of the incidents as particularised in the specified paragraphs amounting to about 100 paragraphs. It was further averred in paragraph 4 that the police officers, to whom she referred in those particulars, were at all material times under the direction and control of the appellant, alternatively were acting as his agents and with his express or implied authority. It was also averred in paragraph 8 that specified senior officers acted with the authority of the appellant in...
To continue reading
Request your trial
-
Nicholas Eckland v Chief Constable of the Avon and Somerset Constabulary
...ICR 1135, CAChief Constable of Cumbria v McGlennon [2002] ICR 1156, EATChief Constable of Kent County Constabulary v Baskerville [2003] EWCA Civ 1354; [2003] ICR 1463, CAChief Constable of Leicestershire v Garavelli [1997] EMLR 543, DCChief Constable of Thames Valley Police v Police Miscond......