P v The Commissioner of Police for the Metropolis
| Jurisdiction | England & Wales |
| Judge | Laws LJ,Lewison LJ,Christopher Clerke LJ |
| Judgment Date | 20 January 2016 |
| Neutral Citation | [2016] EWCA Civ 2 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 January 2016 |
| Docket Number | Case No: A2/2014/1248 |
[2016] EWCA Civ 2
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
LANGSTAFF J
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Lewison
and
Lord Justice Christopher Clarke
Case No: A2/2014/1248
Ms Karon Monaghan QC and Mr Edward Kemp (instructed by Slater Gordon) for the Appellant
Mr Thomas Linden QC and Mr Jesse Crozier (instructed by The Metropolitan Police, Directorate of Legal Services) for the Respondent
Hearing dates: 15 December 2015
INTRODUCTION AND FACTS
This is an appeal, with permission granted by Rimer LJ on 25 July 2014, against the judgment of the Employment Appeal Tribunal (the EAT: Langstaff J) handed down on 25 March 2014. The EAT dismissed the appellant's appeal against the determination of the Employment Tribunal (the ET: Employment Judge Etherington) which on 8 July 2013 had struck out the appellant's disability discrimination claim nominally brought against the Metropolitan Police Commissioner but in substance against a Police Misconduct Panel constituted under the Police (Conduct) Regulations 2008. The basis of the decisions below was that the Panel was a judicial body and as such enjoyed immunity from suit. The question for this court is whether the tribunals should have so concluded.
The EAT crisply summarised the facts of the case as follows:
"The Claimant, a serving Police Officer, was assaulted in 2010 in consequence of which she suffered post-traumatic stress disorder. She complained in an application to the Employment Tribunal that she did not have support at work to help her cope with the consequences of that condition, aggravated by the fact that just prior to 12 th September 2011 she had worked excessively long hours. On that date, whilst in drink, she was involved in an incident which led to her arrest and dismissal. Her behaviour had bizarre features to it. She asserted that it was heavily affected by her PTSD. After investigation, she was brought on a disciplinary charge before the Police Misconduct Board. There, save for one matter of fact (which the Board resolved in her favour) she accepted that she had been culpably guilty of the misconduct alleged. She had a good record as a Police Officer, and relied on that and her condition in mitigation. The Board nonetheless decided on 12 th November 2012 that she should be dismissed from the Force without notice."
THE APPELLANT'S CLAIM
The appellant had no right to claim unfair dismissal because (as Langstaff J observed: paragraph 3) a police officer is an office holder, not an employee. In fact she sought, initially, to claim that she had indeed been unfairly dismissed; but that claim was struck out. It is her other allegations against the Police Misconduct Panel that are the focus of these proceedings. These were claims of disability discrimination. They were described at paragraph 25 of the Further and Better Particulars of the appellant's case given on 6 March 2013, as follows:
"(a) Discrimination arising from disability, contrary to section 15(1) of the Equality Act 2010, in that the Claimant was treated unfavourably by being disciplined and dismissed because of something, i.e. her behaviour on 12 September 2011, arising in consequence of her disability. The disciplinary proceedings and dismissal were not a proportionate means of achieving a legitimate aim.
(b) Failure to make reasonable adjustments contrary to sections 20 and 21 of the Equality Act 2010 in that:
(i) The Claimant has been subjected to a Provision, Criterion or Practice in that the Respondent has applied the police Standards of Professional Conduct to her behaviour.
(ii) Owing to the effects of her disability upon her in September 2011, the Claimant was placed at a substantial disadvantage compared to non-disabled officers in terms of complying with the above standards. The Claimant committed an error of judgment in consuming alcohol on 12 September 2011, and consequently behaving as she did at the nightclub, due to her disability.
(iii) The Respondent ought reasonably to have given more weight to the mitigating factors in the Claimant's case and ought to have obtained medical evidence promptly as to the effects of the Claimant's PTSD upon her in September 2011 and consequently ought not to have commenced the disciplinary proceedings or ought to have discontinued the disciplinary proceedings or ought not to have dismissed the Claimant for gross misconduct.
(c) Harassment related to disability, contrary to section 26 of the Equality Act 2010 in that the bringing of, continuing of and resolution of the disciplinary proceedings constituted unwarranted conduct related to the claimant's disability which has had the effect of creating an intimidating, hostile, degrading, humiliating and/or offensive environment for the Claimant."
POLICE OFFICERS AND EMPLOYMENT TRIBUNALS
It will make for clarity if at this stage I explain the limited circumstances in which statute allows police officers to have access to the Employment Tribunals. Generally they may not do so because, as I have indicated, by the common law they are office holders, not employees. But there are two categories of case in which statute deems a constable to be an employee specifically in order to confer a right of access to the tribunals. The first is where the officer makes a "protected disclosure" – in lay language, where he is a "whistleblower". An employee who makes a protected disclosure, and is dismissed for having done so, is deemed by s.103A of the Employment Rights Act 1996 to have been unfairly dismissed. By s.43KA of the 1996 Act (inserted by s.37 of the Police Reform Act 2002) a police constable (or police cadet) who is dismissed for having made such a disclosure is treated as an employee, and thus enabled to seek relief in the ET by force of s.103A.
The second class of case, which applies here, arises under the Equality Act 2010. S.39 forbids employers to discriminate against employees in various respects as regards their employment. Thus s.39(2) provides:
"An employer (A) must not discriminate against an employee of A's (B)—
(a) as to B's terms of employment;
(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for any other benefit, facility or service;
(c) by dismissing B;
(d) by subjecting B to any other detriment."
Discrimination may arise from the employee's disability (s.15(1)). There is a duty to make reasonable adjustments for a disabled employee (s.20), and there is a prohibition against harassment (s.40). As I have shown all these provisions are invoked in paragraph 25 of the Further and Better Particulars of the appellant's case. In order to vindicate discrimination claims by police officers, holding the office of constable is by s.42 of the Equality Act treated as employment by the chief officer of police for the purposes of Part 5 of the Act. This is the avenue to the Employment Tribunal followed by the appellant in the present case.
THE PROCEEDINGS BELOW
The appellant's disability discrimination claims were listed before an Employment Tribunal (ET) in order to determine whether they should be struck out on the footing that they impugned the process and decision of the Police Misconduct Panel and that the Panel was immune from suit by virtue of its judicial or quasi-judicial function. The ET accepted (paragraph 15) that the Metropolitan Police Misconduct Board was a judicial body which enjoys immunity from suit. Employment Judge Etherington concluded:
"25… These proceedings are no mere action in the nature of an appeal. The claimant is not simply saying to the panel 'you got this wrong', which is within the normal and accepted experience of those exercising judicial functions, but asserts that [the] decision and the process whereby that decision was reached constitute the statutory tort of unlawful discrimination. How can that be said not to impugn the integrity of the panel? Were this matter to continue to a Hearing and a Tribunal to find in favour of the Claimant the members of the panel would stand guilty of discrimination for merely exercising their judicial function in an appropriate way. There is here no suggestion that the outcome of the case before the panel was tainted by malice. This action is no mere challenge to the correctness of the decision but indicts the Board as perpetrators of discrimination."
On appeal to the EAT there was extended discussion of two decisions of this court, Heath v Commissioner of Metropolitan Police [2005] ICR 329 and Lake v British Transport Police [2007] ICR 1293. The Commissioner submitted before Langstaff J that Heath demonstrates that the ET was right to strike out the claim because it violated the Panel's judicial immunity, and Lake is nothing to the contrary. These authorities remain at the heart of the dispute in this court, and I shall have to consider them in some detail. Langstaff J took the view (paragraph 27) that Heath showed that things said or done by the Panel in the course of making its decision were protected by immunity, but not necessarily the decision itself. On this approach it followed that the way the appellant's case against the Panel was framed was critical to the immunity issue. Earlier, Langstaff J had said this:
"21… The very basis for arguing that the decision was wrong was that it was an act of discrimination, and of harassment by the Board. The allegation is centred on its conduct, when exercising its judicial functions. So viewed, the case falls four-square within the core principles established by Heath… The allegation of discrimination is thus based not on the decision itself, since it could not be, but on the way in which that decision was...
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