Lake v British Transport Police
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Wall,Lord Justice Maurice Kay |
| Judgment Date | 05 May 2007 |
| Neutral Citation | [2007] EWCA Civ 424 |
| Date | 05 May 2007 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2006/2112 |
[2007] EWCA Civ 424
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMET APPEALS TRIBUNAL (1 Judge)
HIS HONOUR JUDGE D SEROTA
UKEAT015406LA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Wall and
Lord Justice Maurice Kay
Case No: A2/2006/2112
John Richard Davies QC (instructed by Messrs Hunt Kidd) for the Appellant
Richard Lissack QC and Andrew Short (instructed by Messrs Weightmans) for the Respondent
Hearing dates: 19 th April 2007
This is an appeal by Mr Thomas Lake against a judgment of the Employment Appeal Tribunal, His Honour Judge Serota QC sitting alone, delivered on 8 September 2006. The EAT dismissed an appeal by Mr Lake against a decision of an employment tribunal held at Newcastle-upon-Tyne dated 16 January 2006. The appellant's claim to the employment tribunal was, first, that he had been subjected to a detriment and, secondly, that he had been unfairly dismissed. The dismissal was unfair because the reason, or the principal reason, for it was that he had made a protected disclosure within the meaning of the 1996 Act. As it is often put, he had been a whistleblower.
At a pre-hearing review, while the tribunal refused an application to strike out the appellant's claim which was made under Section 103A of the Employment Rights Act 1996 (“the 1996 Act”) on the ground that the tribunal did not have jurisdiction to hear the claim, held:
“It is, however directed, that the proceedings before the Police Disciplinary Board and the decision of that Board cannot form the basis of that claim, those proceedings and that decision being immune from suit, but that the dismissal claim be restricted to the actions of the Chief Constable in reviewing and confirming the decision to dismiss.”
The facts
The appellant was a constable in the British Transport Police (“the respondents”). On 11 February 1997, he attended a fatality with other members of the force, Sergeant Haggart and PC Tina Ronald. The appellant alleges that Sergeant Haggart found a piece of skull at the scene and retained it as a trophy which he subsequently gave to PC Ronald. On 13 December 2001, PC Ronald told him what had occurred and attempted to give him a piece of the skull. He retained a CCTV tape of the conversation with PC Ronald but did not report the matter to his superiors.
On 5 June 2002, the appellant informed his Federation representative that he was being bullied by Sergeant Haggart. He told the representative what had happened on 11 February 1997. That disclosure led to the arrest and suspension of both Sergeant Haggart and PC Ronald. Following enquiries, a decision was taken not to prosecute them. They made complaints about their arrest, detention and suspension.
Following further investigation, the Crown Prosecution Service decided to take no action against the appellant. Notices were, however, served upon him under the British Transport Police (Conduct) Regulations 1999 (since replaced with no material change by 2004 Regulations). The charges covered a range of conduct. They included charges that the appellant failed to act when he became aware of the unlawful act of his colleagues in December 2001, that he had wrongfully retained the CCTV tape, that he had made false allegations against Sergeant Haggart, and that he had incited another officer to make a false statement alleging unlawful conduct by Sergeant Haggart.
In April 2005, the charges were heard at a disciplinary hearing before the Police Disciplinary Board. The Board found the appellant guilty of a total of five charges and directed that he be dismissed from the force. That was a sanction the panel conducting the hearing was entitled to impose ( Regulation 35 of 2004 Regulations). The appellant exercised his right (Regulation 40) to request the Chief Officer of the Force to review the finding and the sanction imposed. On 30 June 2005, the Chief Constable allowed the appeal on one charge but dismissed it on the remainder and upheld the sanction of dismissal. On 22 July 2005, the appellant submitted his claim to the employment tribunal.
There was a further appeal. That was from the decision of the Chief Constable to the Police Appeal Tribunal, under Section 85 of the Police Act 1996. In a determination dated 17 May 2006, that is after the decision of the employment tribunal, that Tribunal allowed the appeal against the finding of guilt on one charge but dismissed the appeal in relation to three other charges. The appeal against the sanction of dismissal failed.
The surviving charges proved were:
“(a) That on the 13 December 2001 you became aware that Sergeant Haggart and Police Constable Ronald had committed an unlawful act, namely not dealing with human remains properly. You failed in your duties as a police officer to report the matter for immediate investigation, contrary to British Transport Police Conduct Regulations, 1999, Regulation 4.1, Schedule 1, Code of Conduct, Clause 6.
(b) That on the 13 December 2001 in Newcastle you seized a video tape from the railway close circuit television system and failed to deal with it in accordance with Force Standing Orders, contrary to the British Transport Police Conduct Regulations 1999, Regulation 4.1 Schedule 1, Code of Conduct Clause 6.
(c) That on the 16 January 2002 you incited Police Constable Burns to make a false statement alleging that Sergeant Haggart used excessive force against a member of the public, contrary to the British Transport Police Conduct Regulations 1999, Regulation 4.1, Schedule 1, Code of Conduct Clause 1.”
The hearings below
The claim to the employment tribunal was on the ground that the appellant had been subjected to a detriment, the laying of charges against him, by reason of having made a protected disclosure (Section 47B of the 1996 Act) and that he had been unfairly dismissed because the reason for his dismissal was that the he had made such a disclosure (Section 103A of the 1996 Act). The respondents denied that the disclosure made had been a protected disclosure and further denied that the charges against the appellant were laid because he had made such a disclosure. However, their primary case was that he was “prohibited from bringing such a claim”.
It was conceded by the respondents before the employment tribunal (paragraph 7 of written reasons), that “the detriment claim relating to the bringing of charges can be allowed to proceed to a full hearing.” However, they argued:
“… the claimant was dismissed by the Police Disciplinary Board and that following the decision of the Court of Appeal in Heath that board was fulfilling a quasi-judicial function and, as a consequence, its proceedings and its decision are immune from suit.”
Relying on the decision of this court in Heath v Commissioner of Police for the Metropolis [2005] ICR 329, and that of the House of Lords in Darker v Chief Constable of the West Midlands [2001] 1 AC 435, the tribunal accepted that submission:
“ 16. I can think of nothing which is more likely to be seen as an attack on the integrity of the judicial process and hence the public interest than permitting a situation where members of the Police Disciplinary Board, in the pursuit of a quasi judicial function, can be required to attend at the Tribunal and be answerable not only for their conduct, but more significantly for the decision that they have arrived at. It is, to me inconceivable that a judge can behave entirely unreasonably during the course of proceedings and is protected from civil proceedings, but that the decision that he reaches at the conclusion of the proceedings can be so attacked. That cannot, in my view, be right.
17. Accordingly, I conclude that the claimant cannot be permitted to attack the Police Disciplinary Board in relation either to their proceedings or in relation to their decision. I acknowledge the force of Mr Davies's argument that if, in reality, a decision to dismiss a police officer will always be made by a Police Disciplinary Board, by providing that board with immunity from suit in this way the rights provided by s43A are significantly eroded. I can, however, see no way that I could conclude that I was not bound by the clearest of decisions of the Court of Appeal.
18. That does not, however, mean that the claimant is of necessity prevented from pursuing this dismissal claim. As I have described the decision of the Police Disciplinary Board was the subject of an appeal to the Chief Constable. The Chief Constable could have reversed the decision in which event there would have been no dismissal. The Chief Constable in exercising that function can clearly not bring himself within the Trapp guidelines. Thus, if the claimant can demonstrate that the Chief Constable's decision was made by reason of the fact that he had made a protected disclosure, the dismissal claim may still be able to succeed. Thus, whilst I do not strike out the dismissal claim, I do restrict the basis upon which it can be advanced.”
That reasoning led to the employment tribunal's conclusion that “the decision of the Board cannot form the basis” of a Section 103A claim. ( Trapp v Mackie [1979] 1 WLR 377 was concerned with the type of tribunal before which witnesses had the protection of absolute privilege.) The intention and effect of that reasoning and that order appear to me to be that decision of the Board on unfair dismissal cannot, in a protected disclosure case, be challenged at an employment tribunal.
In the Employment Appeal Tribunal, Judge Serota...
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