Heath v Commissioner of Police of the Metropolis
| Jurisdiction | UK Non-devolved |
| Judgment Date | 12 May 2003 |
| Date | 12 May 2003 |
| Court | Employment Appeal Tribunal |
Court and Reference:Employment Appeal Tribunal, EAT/454/02/TM
: Rimer J, Mr C Edwards, Miss C Holroyd
Appearances: M Sethi (instructed by Underwoods) for H; O Segal (instructed by the Directorate of Legal Services, New Scotland Yard) for the Commissioner
: Whether the Commissioner could rely on absolute immunity in respect of a claim for sex discrimination arising out of the conduct of a police disciplinary hearing
: H was employed by the police as a civilian member of staff at Hornsey Police Station. She complained that on a number of occasions in March 1999 she was the victim of sexual assaults by an inspector at that Station. She presented a complaint against the Commissioner to the employment tribunal, alleging unlawful sex discrimination by reason of the inspector's alleged acts. The application was stayed pending the outcome of a proposed investigation into the complaints and any subsequent disciplinary hearings and appeals. A disciplinary hearing against the inspector took place pursuant to the provisions of the Police (Discipline) Regulations 1985. The disciplinary Board consisted of 3 male commanders. The inspector was represented by counsel. H gave evidence and was cross-examined. After the hearing H presented a second complaint against the Commissioner to the employment tribunal. She contended that the Discipline Board had subjected her to sexual harassment in their conduct of that hearing. She had felt intimidated by the fact that it consisted of 3 men and her union representative had pleaded with the Board to be allowed to sit at the back of the court to give H female support. Whilst being cross-examined by the inspector's counsel she said that she had been asked to demonstrate how the inspector had fondled her right breast, a demonstration requiring her to open her jacket; at the time, the inspector was grinning at her only feet away and the Board members raised no objection to counsel's request.
The Employment Tribunal ruled, as a preliminary issue, that the disciplinary hearing constituted judicial proceedings in respect of which the disciplinary Board and the Commissioner enjoyed absolute immunity from actions complaining about the conduct of the hearing. Accordingly, that application was dismissed. H appealed to the EAT. She argued that absolute immunity did not apply because a police disciplinary tribunal carried out an administrative function concerned with an internal industrial relations question as to the alleged misconduct of an officer. Further, there were important differences in procedure between a police disciplinary tribunal and a court of justice in that (i) proceedings were heard in private, (ii) witnesses were not compellable, (iii) evidence was not given under oath, and (iv) there was no provision for orders for costs. H also relied on Arts 8 and 14 of the European Convention on Human Rights.
1. This is an appeal against a decision of an employment tribunal sitting at London Central on 25 January 2002 and chaired by Mr B Buckley. The tribunal's extended reasons were sent to the parties on 12 March 2002. The appeal raises the question of the extent to which a disciplinary hearing held under the Police (Discipline) Regulations 1985 is a quasi-judicial proceeding such as to entitle the Board conducting it to immunity from suit in relation to the manner in which they did so.
2. The appellant is Miss Diane Heath, who was represented before the tribunal and us by Mr Mohinderpal Sethi. The respondent is the Commissioner of Police for the Metropolis ("the Commissioner"), who was represented before the tribunal and us by Mr Oliver Segal.
3. Miss Heath is employed by the Commissioner as a Station Reception Officer. In 1999, she was serving as a civilian member of staff at Hornsey Police Station in London. She complains that on a number of occasions in March 1999 she was the victim of sexual assaults by an inspector at that Station. On 15 April 1999, she presented a complaint to the employment tribunal, alleging unlawful sex discrimination by reason of the inspector's alleged acts. She joined the Commissioner as the sole respondent and relied on ss. 6(2)(b) and 41(1) of the Sex Discrimination Act 1975.
4. By his IT3, the Commissioner neither admitted nor denied the allegations against the inspector. He simply asked for the proceedings to be stayed pending the outcome of a proposed investigation into the complaints and any subsequent disciplinary hearings and appeals. He said that, after that, he would seek the tribunal's leave to amend his IT3 to make such admissions or denials of Miss Heath's allegations as were appropriate.
5. Miss Heath's application was so stayed. For a time there was a prospect that a might be brought against the inspector, but in about mid-1999 the Crown Prosecution Service decided against it. The inspector was then charged under the police disciplinary code and the employment tribunal proceedings remained stayed pending their outcome.
6. The disciplinary hearing against the inspector on charges of indecent assault on Miss Heath took place on 13 March 2001. The hearing was governed by the Police (Discipline) Regulations 1985. In accordance with Sched 3 to the Regulations, a disciplinary Board consisting of 3 commanders was appointed to hear the charges. The inspector was represented by counsel. Miss Heath gave evidence and was cross-examined.
7. On 5 June 2001, Miss Heath presented a second complaint to the employment tribunal, again joining the Commissioner as respondent. This time her complaint was that the Board had subjected her to sexual harassment in their conduct of that hearing. She alleges that she felt intimidated by the fact that it consisted of 3 men. She says that her union representative, Julie Spark, pleaded with the Board to be allowed to sit at the back of the court and to give Miss Heath female support. She complains that, whilst being cross-examined by the inspector's counsel, he asked her to demonstrate how the inspector had fondled her right breast, a demonstration requiring her to open her jacket. She complains that, at the time, the inspector was grinning at her only feet away and that the Board members raised no objection to counsel's request. She says she felt intimidated and humiliated "by the lack of knowledge and compassion the board members displayed." We were provided with a transcript of the part of the cross-examination of which Miss Heath complains, and the relevant exchange occupies 7 lines.
8. In December 2001, Miss Heath's second complaint to the employment tribunal was also stayed, this time until after...
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