Nicholas Eckland v Chief Constable of the Avon and Somerset Constabulary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Coulson LJ,Carr LJ |
| Judgment Date | 07 January 2022 |
| Neutral Citation | [2021] EWCA Civ 1961 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2021/0816 |
[2021] EWCA Civ 1961
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE KERR
[2021] UKEAT 0123_20_1802
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Coulson
and
Lady Justice Carr
Case No: A2/2021/0816
Dijen Basu QC and Elliot Gold (instructed by Legal Services Directorate, Avon and Somerset Constabulary) for the Appellant
Karon Monaghan QC and Christopher Milsom (instructed by Penningtons Manches Cooper LLP) for the Claimant
James Berry (instructed by John Bassett of the National Association of Legally Qualified Chairs) for the First Intervener
Anne Studd QC and Victoria von Wachter (instructed by Independent Office for Police Conduct) for the Second Intervener
Clive Sheldon QC (instructed by TLT Solicitors) for the Third Intervener (written submissions only)
Hearing date: 23 November 2021
Approved Judgment
INTRODUCTION
The Claimant, who is the Respondent to this appeal, was a constable in the Avon and Somerset Constabulary from 13 November 1998 until his dismissal with effect from 13 December 2018. At the date of his dismissal he held the rank of Detective Sergeant. He claims that his dismissal was unlawfully discriminatory. The issue raised by this appeal is how and against whom he is entitled to bring that claim.
The circumstances of the Claimant's dismissal can be sufficiently summarised for present purposes as follows. On 23 March 2018 he gave evidence on oath at Bristol Crown Court regarding the death in prison of a defendant against whom criminal proceedings were ongoing. His evidence was to the effect that he had attended at a mortuary and identified the deceased as the person charged on the indictment in those proceedings. In fact, he had not been to the mortuary and had not identified the deceased. His false evidence in this regard led to an investigation by the Independent Office for Police Conduct (“the IOPC”), which found that there was a case to answer of gross misconduct. That led in turn to misconduct proceedings under the Police (Conduct) Regulations 2012. A misconduct hearing duly took place before an independent panel constituted in accordance with the Regulations (“the Panel”); and it was the Panel that decided his dismissal. It is the Claimant's case that he was at the relevant times suffering from a mental health condition which constituted a disability within the meaning of the Equality Act 2010, and that it was as a result of that condition that he gave the false evidence that led to his dismissal.
On 3 May 2019 the Claimant commenced proceedings in the Employment Tribunal (“the ET”) against the Chief Constable of the Avon and Somerset Constabulary, who is the Appellant before us, for discrimination contrary to section 39 (2) (c) and (d) of the 2010 Act. Although section 39 is concerned with discrimination against employees, section 42 (1) provides as follows:
“For the purposes of this Part, holding the office of constable is to be treated as employment —
(a) by the chief officer, in respect of any act done by the chief officer in relation to a constable or appointment to the office of constable;
(b) by the responsible authority, in respect of any act done by the authority in relation to a constable or appointment to the office of constable.”
(We are in fact only concerned with (a), but I quote the entire subsection for completeness.) The Part of the Act referred to is Part 5 (“Work”), into which section 39 falls. “Chief officer” is defined in section 43 (2) in terms that apply to the Chief Constable in this case.
The Claimant's Grounds of Complaint allege both “disability-related discrimination” under section 15 of the Act and discrimination by failure to make reasonable adjustments under section 21. As regards the section 15 claim, the discrimination in question is pleaded as both “the act of disciplining the Claimant” and “the act of dismissing [him]” (see para. 31): the former is a reference to the IOPC's finding of a case to answer, and the latter is, on its face, a reference to the Panel's actual decision to dismiss. As regards the section 21 claim, most of the matters complained of are not material to this appeal, but paras. 37.4 and 39.4–8 contain complaints about the failure of the Panel to make reasonable adjustments in relation to the conduct of the hearing before it.
In her 1 Response to the claim the Chief Constable raised various preliminary objections. The objection which is relevant for our purposes is that she had no legal responsibility for the acts of the IOPC or the Panel, who are independent actors, and that the ET had no jurisdiction to entertain the claim in those regards.
That objection was heard by Employment Judge Harper MBE at a preliminary hearing on 17 February 2020. By an order with reasons sent to the parties the following day he dismissed the Chief Constable's objection and held that she was the correct respondent in respect of the complaint raised and that the ET had jurisdiction to determine it. He relied in particular on the decision of the Supreme Court in P v Commissioner of Police for the Metropolis [2017] UKSC 65, [2018] ICR 560. I shall have to return to that decision later, but in short what the Court held was that in the context of a claim of disability discrimination it was necessary, in order to comply with EU law, to read section 42 (1) (a) in such a way that the actions of a panel determining a charge of misconduct by a police officer fell to be treated as the acts of the relevant chief officer.
The Chief Constable appealed to the Employment Appeal Tribunal (“the EAT”). By a judgment handed down on 6 April 2021 Kerr J dismissed the appeal. As he records, counsel for the Claimant in the course of the hearing accepted that he could not proceed against the Chief Constable as regards the part of the claim based on the acts or omissions of the IOPC (see paras. 6–7 of his judgment). He accepted that concession and allowed the appeal in that regard, effectively by consent (see paras. 64–79); and that part of the claim is no longer live. As regards the part of the claim based on the acts or omissions of the Panel, Kerr J relied principally, like the ET, on the decision of the Supreme Court in P.
This is an appeal by the Chief Constable against that decision, with permission granted by Kerr J himself. She has been represented by Mr Dijen Basu QC, leading Mr Elliot Gold. The Claimant has been represented by Ms Karon Monaghan QC, leading Mr Christopher Milsom. Mr Basu, Mr Gold and Mr Milsom appeared in both the ET and the EAT.
Three other parties have been given permission to intervene in the appeal – the National Association of Legally Qualified Chairs (“the NALQC”), the IOPC and the Association of Police and Crime Commissioners (“the APCC”). The NALQC and the IOPC were permitted to make oral submissions and were represented respectively by Mr James Berry and by Ms Anne Studd QC, leading Ms Victoria von Wachter. The APCC has intervened by way of written representations only: the representations were settled by Mr Clive Sheldon QC.
THE REGIME APPLYING TO POLICE MISCONDUCT
The regime applying to police misconduct is complicated and has a complicated history. In what follows I do not attempt any comprehensive summary and focus only on the features relevant to this appeal.
I start with the role of the IOPC (known until 8 January 2018 as the Independent Police Complaints Commission (“the IPCC”)). By schedule 3 to the Police Reform Act 2002 (as amended), the chief officer of the relevant force is obliged, or otherwise may consider it appropriate, to refer certain matters involving one of their officers to the IOPC. The provisions are complex. For present purposes it is enough to say that on such referral the Director-General of the IOPC will then determine the correct mode of investigation, which may be an “independent investigation”, i.e. one conducted by the IOPC itself. The Claimant's case was so referred and was the subject of an independent investigation. The Director-General is empowered at the conclusion of the investigation to recommend, and if necessary direct, that the Chief Constable initiate disciplinary proceedings against the officer.
I turn to the disciplinary proceedings, and specifically to the procedures for a misconduct hearing. The applicable procedures are prescribed by Regulations made by the Secretary of State under the Police Act 1996. The Regulations in force at the time of the proceedings against the Claimant were the Police (Conduct) Regulations 2012 (“the 2012 Regulations”), as amended by the Police (Conduct) (Amendment) Regulations 2015 (“the 2015 Amendment Regulations”) and the Police (Conduct, Complaints, Misconduct and Appeal Tribunal) (Amendment) Regulations 2017 (“the 2017 Amendment Regulations”). However, for reasons which will appear, it will be necessary to consider also the predecessors to the 2012 Regulations, which were the Police (Conduct) Regulations 2008 (“the 2008 Regulations”). I do not need to give a comprehensive summary of the provisions relating to misconduct hearings in any of the various versions of the Regulations; and...
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...to be arguably achieved through liability being fixed on the Respondent – see Chief Constable of Avon and Somerset Police v Eckland (2021) EWCA Civ. 1961. 49.3 The general principle that a police officer in force A can be an agent of Force B when managing an officer or staff member of force......
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