P v Commissioner of Police of the Metropolis
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lady Hale,Lord Kerr,Lord Wilson,Lord Hughes |
| Judgment Date | 25 October 2017 |
| Neutral Citation | [2017] UKSC 65 |
| Date | 25 October 2017 |
| Court | Supreme Court |
[2017] UKSC 65
Lady Hale
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
Appellant
Karon Monaghan QC
Edward Kemp
(Instructed by Slater & Gordon (UK) LLP)
Respondent
Thomas Linden QC
Jesse Crozier
(Instructed by Metropolitan Police Service, Directorate of Legal Services)
Intervener (1st)
Paul Bowen QC
(Instructed by Equality and Human Rights Commission)
Interveners (2 nd) (written submissions only)
D Peter Herbert OBE
(1) Equality and Human Rights Commission
(2) The Society of Black Lawyers, Operation Black Vote Association of Muslim Lawyers,
NHS BME Network,
BARAC,
BLAKSOX,
The Runneymede Charitable Trust and
The National Black Police Association
Heard on 3 and 4 May 2017
(with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hughes agree)
This appeal concerns the directly effective right of police officers under EU law to have the principle of equal treatment applied to them. The question raised is whether the enforcement of that right by means of proceedings in the Employment Tribunal is barred by the principle of judicial immunity, where the allegedly discriminatory conduct is that of persons conducting a misconduct hearing.
The material facts are in short compass. The appellant was assaulted in 2010, while serving as a police officer, and subsequently suffered post-traumatic stress disorder ("PTSD"). In 2011, she was involved in an incident which led to her arrest. She asserted that her behaviour on that occasion was related to her PTSD. After investigation, she was made the subject of a disciplinary charge before a misconduct hearing constituted under the Police (Conduct) Regulations 2008 (SI 2008/2864) ("the 2008 Regulations"). There, apart from one issue of fact which was resolved in her favour, she accepted that she had been guilty of the misconduct alleged. She relied on her good record as a police officer and her PTSD in mitigation. On 12 November 2012, the persons conducting the hearing ("the panel") imposed the sanction of dismissal without notice.
The appellant appealed against her dismissal to the Police Appeals Tribunal, which could allow her appeal if it considered the disciplinary action taken to be unreasonable. She also instituted proceedings against the Commissioner of Police of the Metropolis ("the Commissioner") in an Employment Tribunal under the Equality Act 2010 ("the 2010 Act"), in which she claimed that the decision to dismiss her constituted discrimination arising from disability and disability-related harassment, and was consequential upon a failure to make reasonable adjustments. In response, the Commissioner contended that the decision, and acts done by the panel in the course of the proceedings, were protected from challenge by the principle of judicial immunity. The appellant indicated her intention to seek a stay of her claim before the Employment Tribunal, pending the outcome of her appeal to the Police Appeals Tribunal, subject to the outcome of a pre-hearing review. In the event, a final determination was made by the Police Appeals Tribunal on 11 June 2013 that the appeal would not proceed.
Following a pre-hearing review, the Employment Tribunal struck out the appellant's claim on the basis that the panel was a judicial body, and that since the appellant's claim was to the effect that its decision and the process by which it was reached were unlawfully discriminatory, the claim was barred by judicial immunity. An appeal against that decision was dismissed by the Employment Appeal Tribunal, applying the decision of the Court of Appeal in Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943; [2005] ICR 329. A further appeal was dismissed by the Court of Appeal on the basis that the present case was indistinguishable from Heath: [2016] EWCA Civ 2; [2016] IRLR 301. Laws LJ, giving a judgment with which the other members of the court agreed, remarked:
"However I have been troubled by a particular feature of the case. If I am right, it would appear that claims of discriminatory dismissal brought by police officers, where the effective dismissing agent is a disciplinary panel such as was convened here, will not be viable in the Employment Tribunals; yet Parliament has legislated to allow such claims to be made." (para 24)
The rights on which the appellant relies are directly effective rights under EU law. Council Directive 2000/78/EC ("the Framework Directive") provides in article 1 that its purpose is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the member states the principle of equal treatment.
That principle is defined in article 2(1) as meaning that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in article 1. Article 2(2) defines direct and indirect discrimination. Article 2(3) provides that harassment shall be deemed to be a form of discrimination. Article 2(5) provides that the Directive shall be without prejudice to measures laid down by national law which, in a democratic society, are necessary for public security, for the maintenance of public order and the prevention of criminal offences, for the protection of health and for the protection of the rights and freedoms of others. It has not been suggested that article 2(5) has any relevance in the present context. Article 5 provides that compliance with the principle of equal treatment also requires reasonable accommodation to be provided in relation to persons with disabilities.
In relation to the scope of the Directive, article 3(1) provides that, within the limits of the areas of competence conferred on the Community, the Directive shall apply to "all persons, as regards both the public and private sectors, including public bodies", in relation to a variety of matters relating to employment and occupations, including "employment and working conditions, including dismissals". Article 3(4) permits member states to exclude their armed forces from the application of the Directive, in so far as it relates to discrimination on the grounds of disability and age. There is no corresponding provision in relation to police forces.
In relation to remedies and enforcement, article 9(1) requires member states to "ensure that judicial and/or administrative procedures … for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them". Article 17 requires member states to lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to the Directive, and to take all measures necessary to ensure that they are applied. The sanctions may comprise the payment of compensation to the victim, and must be "effective, proportionate and dissuasive".
The Framework Directive is currently implemented in domestic law by the 2010 Act. In Part 2 of the Act, section 4 identifies protected characteristics, including disability as defined by section 6. Section 13 defines discrimination as including the less favourable treatment of a person because of a protected characteristic. Sections 15 and 19 make further provision in relation to discrimination against disabled persons. Sections 20 to 22 make provision in relation to the duty to make reasonable adjustments for disabled persons. Section 26 makes provision in relation to harassment related to a protected characteristic.
In Part 5 of the Act, section 39 provides that an employer (A) must not discriminate against a person (B) in a variety of ways, including by dismissing B. It also provides that a duty to make reasonable adjustments applies to an employer. Section 40 provides that an employer (A) must not, in relation to employment by A, harass a person (B) who is an employee of A's.
Special provision is made in relation to police officers by sections 42 and 43. In particular, section 42(1) provides that, for the purposes of Part 5 of the Act, holding the office of constable is to be treated as employment by the chief officer in respect of any act done by the chief officer in relation to a constable, and as employment by the responsible authority in respect of any act done by the authority in relation to a constable. That provision is necessary because, at common law, a police officer is not an employee but the holder of an office. The expressions "chief officer" and "responsible authority" are defined by section 43(2) and (3) respectively. In relation to officers in the Metropolitan Police, the former expression refers to the Commissioner, and the latter expression refers to the Mayor's Office for Policing and Crime.
It is relevant to note that section 42(1) is in substance a re-enactment of section 64A of the Disability Discrimination Act 1995, which was introduced by regulation 25 of the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673). Those Regulations were made under the European Communities Act 1972 ("the 1972 Act"), in order to implement the Framework Directive.
Ancillary provisions are set out in Part 8 of the 2010 Act. Section 109 is concerned with the liability of employers and principals. Subsection (1) provides that anything done by a person (A) in the course of A's employment must be treated as also done by the employer. Subsection (2) provides that anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.
Section 120 confers...
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