Chief Constable of Kent County Constabulary v Baskerville
| Jurisdiction | UK Non-devolved |
| Judgment Date | 14 April 2003 |
| Date | 14 April 2003 |
| Court | Employment Appeal Tribunal |
Court and Reference: Employment Appeal Tribunal; Appeal No EAT/839/02/SM
: HHJ J McMullen QC
: M Ford (instructed by Kent County Council Legal Services) for the Chief Constable; S Garner (instructed by Russell, Jones & Walker) for B
: Whether an Employment Tribunal had been right not to strike out a claim for sex discrimination made by a police officer against the Chief Constable
: B was a police constable in Kent Constabulary. She went on maternity leave in late 1997. She contended that when she returned a series of events began which were, each or together, acts of sex discrimination. They included allocating B 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 superiors. She went sick and was prescribed antidepressants and was eventually admitted to hospital with a suspected stroke. She attributed her condition to the treatment she received. She made an application to the Employment Tribunal. At a preliminary hearing the Employment Tribunal Chairman considered exercising her power under r15 of the Employment Tribunal Rules of Procedure to strike out B's claim on the grounds that it was misconceived. She decided that the claim should not be struck out. The Chief Constable appealed. He argued that B was not the Chief Constable's employee and that on binding authority she could not maintain a claim for sex discrimination against him and that the Chairman should not have had regard to the ability of B to amend her claim.
1. This case is in substance about whether a police constable may bring a complaint of sex discrimination against a Chief Constable, and in form about Employment Tribunal procedure on striking out a claim. The case is heard under the Employment Tribunals Act 1996, s. 28(4); that is by an EAT judge alone, without complaint by the parties. I will refer to them as Applicant and Respondent.
2. It is an appeal by the Respondent, and a cross-appeal by the Applicant, in those proceedings against a decision of an Employment Tribunal Chairman, Mrs Valerie Cooney, sitting alone at Ashford, registered with Extended Reasons on 1 July 2002. The Applicant was represented by Miss Brown, and today by Mr Michael Ford; the Respondent was represented there and here by Miss Sophie Garner, all of Counsel. The Applicant claims sex discrimination. The Respondent denies the complaint.
The Issue
3. The essential issue, as defined by previous Employment Tribunal Chairmen, was to decide whether the complaint could be maintained in the light of the decision of the Court of Appeal in Chief Constable of Bedfordshire Police v Liversidge [2002] Police Law Reports 146, [2002] ICR 1135 that race discrimination complaints may not be weighed against a Chief Constable except in limited circumstances. Although that is the substantial point at issue, the form is an appeal contending that the Chairman erred in law in her decision that the Applicant's claim of sex discrimination against the Respondent was not misconceived, should not be struck out and should proceed to a hearing on the merits. An issue arose on appeal as to whether the Chairman had the power to sit alone on the case but that is not pursued. She had it.
The Legislation
Discrimination and the police
4. The relevant provisions of the legislation are as follows. The Equal Treatment Directive ("the ETD") 76/207/EEC provides for member states to implement the principle of equal treatment of men and women in employment and occupation, now incorporated in Art 141.3 of the consolidated version of the Treaty of Rome. The Sex Discrimination Act 1975 gives effect in Great Britain to that obligation. Section 6 in Part II headed Discrimination in the Employment Field provides the forms of discrimination made unlawful by s. 1:
"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman -
(a) in the arrangements he makes for the purpose of determining who should be offered that employment, or
(b) in the terms on which he offers her that employment, or
(c) by refusing or deliberately omitting to offer her that employment.
(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -
(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or
(b) by dismissing her, or subjecting her to any other detriment."
Section 17 defines the engagement of a police officer:
"(1) For the purposes of this Part [Part II], the holding of the office of constable shall be treated as employment -
(a) by the chief officer of police as respects any act done by him in relation to a constable or that office;
(b) by the police authority as respects any act done by them in relation to a constable or that office."
Section 41 in Part IV headed "Other Unlawful Acts" provides for the liability of employers (41(1)) and of principals and agents:
"(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act as done by that other person as well as by him."
Section 63(1) gives the entitlement to complain:
"(1) A complaint by any person ('the complainant') that another person ('the respondent') -
(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II, or
(b) is by virtue of s. 41 … to be treated as having committed such an act of discrimination against the complainant,
may be presented to an employment tribunal."
5. The Race Relations Act 1976 is also relevant to the interpretation of the Sex Discrimination Act. Section 16 in Part II of the Race Relations Act corresponds to s. 17, and was repealed with effect from 2 April 2001 by the Race Relations (Amendment) Act 2000 s. 4. Section 32(2) in Part IV of the Race Relations Act corresponds to s. 41(2). But by s. 76A of the amendedRace Relations Act 1976, it is provided broadly speaking that a police constable is treated as in the employment of her chief constable, again from 2 April 2001. The Race Relations Act 1976 was modelled on the Sex Discrimination Act, which in turn was modelled on, but was in respects relevant to this appeal significantly different from, theRace Relations Act 1968.
6. The Police Act 1996, makes provision for the establishment of police forces. Section 10 provides as follows:
"General functions of chief constables
(1) A police force maintained under s. 2 shall be under the direction and control of the chief constable appointed under s. 11.
(2) In discharging his functions, every chief constable shall have regard to the local policing plan issued by the police authority for his area under s. 8."
Section 88 defines the liability of a chief constable for torts:
"Liability for wrongful acts of constables
(1) The chief officer of police for a police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor."
The Police Act s. 2 provides that police forces are maintained for each of the areas referred to in the statute. Specific powers are given to each chief constable, including the power of appointment of others, to deal with complaints, and, it was held, power to delegate: Liversidge para 49.
Employment Tribunal procedure
7. Procedural rules are laid down by the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001. The relevant ones are Reg 10, which provides for Tribunals to observe the overriding obligation to ensure that cases are tried justly, and rr6 and 15(2)(c). Rule 6 deals with the entitlement to sue
"(1) A tribunal may at any time before the hearing of...
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