Hendricks v Commissioner of Police for the Metropolis

JurisdictionEngland & Wales
JudgeLord Justice Mummery,Lord Justice May,Lord Justice Judge
Judgment Date27 November 2002
Neutral Citation[2002] EWCA Civ 1686
Docket NumberCase No: A1/2001/2529
CourtCourt of Appeal (Civil Division)
Date27 November 2002

[2002] EWCA Civ 1686

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL

TRIBUNAL (HH JUDGE D SEROTA QC)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before

Lord Justice Judge

Lord Justice Mummery and

Lord Justice May

Case No: A1/2001/2529

Between
Joy Hendricks
Appellant
and
The Commissioner of Police of the Metropolis
Respondent

Mr Robin Allen QC and Mr Jason Galbraith-Marten (instructed by Schilling & Lom and Partners) for the Appellant

Mr John Cavanagh QC and Miss Louise Chudleigh (instructed by the Metropolitan Police Service Solicitors' Department) for the Respondent

Lord Justice Mummery

The Appeal

1

This is an appeal by Miss Joy Hendricks from the order of the Employment Appeal Tribunal dated 5 November 2001, allowing an appeal by the Commissioner of Police of the Metropolis (the Commissioner) against an interlocutory decision of the Employment Tribunal.

2

The Commissioner challenges rulings of the Employment Tribunal on preliminary jurisdictional questions. The main issues are concerned with statutory time limits on bringing proceedings for discrimination, when an act is alleged to extend over a period. If an act extends over a period, it is treated as having been done at the end of that period; whereas, in the case of an isolated act, time runs from when that act was done. The distinction, which is sometimes difficult to apply in practice, has been discussed in recent decisions of this court and of the Employment Appeal Tribunal. As the time limit is only three months, unless extended by the tribunal in cases where it is just and equitable to do so, the distinction can be critical: on it depends the jurisdiction of the tribunal to entertain the application.

3

In extended reasons sent to the parties on 11 April 2001 the Employment Tribunal unanimously decided

"(1) that these Tribunals do have jurisdiction to consider the Applicant's complaints of sex discrimination and race discrimination; and

(2) that these Tribunals do have jurisdiction to consider her complaints of sex discrimination and race discrimination arising out of the assault charge brought against her in September 1998."

4

On 20 February 2002 Sedley LJ granted permission to appeal.

The Parties

5

Miss Hendricks, who is black, has been a police officer in the Metropolitan Police Service since 25 January 1987. She has been on long-term sick leave since 15 March 1999 suffering from stress. She was on full pay until 1 April 2000. Her pay was then stopped.

6

The Commissioner is the only respondent. Under Section 9A of the Police Act 1996, as amended,

"(1) The metropolitan police force shall be under the direction and control of the Commissioner of Police of the Metropolis appointed under section 9B."

7

As the chief officer of police for the metropolitan area, the Commissioner is, by virtue of section 88 of the 1996 Act,

"….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 Employment Tribunal Proceedings

8

Miss Hendricks presented two originating applications to the Employment Tribunal. She named the Commissioner as respondent in each case.

i) The Discrimination Proceedings

On 8 March 2000 Miss Hendricks presented an originating application complaining of race and sex discrimination over a period of 11 years. In Form IT1 she stated that the date when the matter that she was complaining about took place was "20 12/99 & continuing". In the box for further details she added

"During most of my service, approximately eleven years, I have been subjected to race and sexual discrimination and harassment.

I am currently seeking advice and assistance from the Commission of Racial Equality. Full details of my complaint will follow once advice has been received from the CRE and a decision of representation made."

On 3 July 2000 she made a detailed statement (110 paragraphs) about her complaints of discrimination. Pursuant to orders of the Employment Tribunal, further particulars were supplied by Miss Hendricks on 24 August 2000 and on 17 November 2000. The statement and the further amended particulars refer to numerous alleged instances of less favourable treatment of her from 1989 down to, and even after, the presentation of the originating application. She makes nearly 100 specific allegations of discrimination, mainly in the period 1989 to 1994, involving 50 or more officers. The Commissioner contends that the discrimination proceedings have been brought out of time, as no specific acts or omissions amounting to discrimination, other than the stoppage of pay in April 2000, occurred in the three month period preceding 8 March 2000. If the case is allowed to continue, the substantive hearing will be long and expensive. In the view of the Commissioner's advisers, 100 witnesses will be required to give evidence about incidents alleged to have happened years ago. The hearing is estimated to last about three months.

ii) The Victimisation Proceedings

On 14 July 2000 Miss Hendricks presented a second application to the Employment Tribunal. In it she alleges victimisation following a complaint of race and sex discrimination. She stated that the date when the matter she was complaining about took place was 18 April 2000 when she was informed, during the course of a telephone conversation, that her pay was reduced from "full pay" to "no pay". She referred to her discrimination proceedings and alleged that the fact of the reduction and the way it was effected was "directly related to her putting a complaint of race and sex discrimination before the tribunal and, and in the circumstances, such action constitutes victimisation."

The Commissioner accepts that the victimisation proceedings were brought in time.

9

In notices of appearance the Commissioner denied that there had been any race or sex discrimination or victimisation.

10

Following a directions hearing on 17 October 2000, at which both parties were represented by counsel, the Chairman ordered that the two claims be consolidated and heard together. A letter from the chairman dated 23 October 2000 stated

"3. The Issues : The Applicant identified the issues under three broad headings—race discrimination, sex discrimination and claims under the Equal Treatment Directive. In general terms the claims could be summarised as being treatment from the Applicant's colleagues in the form of comments, bullying and ostracism; treatment by management in the form of failure to prevent her treatment from her colleagues, the failure to send the Applicant on a course, unjust appraisals and lack of support. In addition the Applicant relies on the complaint of assault brought by two of her colleagues in 1998. She further claims sex discrimination in the form of victimisation arising from Inspector Sutton's enquiry of colleagues about her private life which led to a greater degree of stress than she would have otherwise have suffered, and, finally, the withdrawal of her sick pay."

11

After ordering Miss Hendricks to provide further and better particulars of her complaints, commenting that "as presently pleaded, the information is too lengthy and indigestible to be clear as to the nature of the Applicant's complaints", the Chairman directed that the matter be set down for a preliminary hearing on 29 January 2001 to consider the following points

"i) Whether having regard to the time limit contained within section 76 of the Sex Discrimination Act 1975 a Tribunal has jurisdiction to consider the Applicant's complaint of sex discrimination.

ii) Whether having regard to the time limit contained in section 68 of the Race Relations Act 1976 a Tribunal has jurisdiction to consider the Applicant's complaint of race discrimination.

iii) Whether given the nature of the complaint relating to the assault charge brought against the Applicant in September 1998 the Tribunal has jurisdiction to consider her complaint of discrimination arising there from".

The Statutory Provisions

12

Under section 6(2) of the Sex Discrimination Act 1975 (the 1975 Act)

"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)…

(b) by dismissing her, or subjecting her to any other detriment."

13

The complaints made in this case are of less favourable treatment of Miss Hendricks on the ground of her sex. That is a claim of direct discrimination within section 1(1)(a) of the 1975 Act.

14

Section 17 of the 1975 Act contains provisions for the special case of the police—

"(1) For the purposes of this Part [Part II-Discrimination in the Employment Field], 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"

15

It is common ground that the Commissioner is a "chief officer of police" within the meaning of section 17.

16

The 1975 Act contains relevant provisions relating to vicarious and constructive liability—

"41(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another...

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