Sheikh v Chief Constable of Greater Manchester Police
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CROOM-JOHNSON,LORD JUSTICE BALCOMBE,LORD JUSTICE O'CONNOR |
| Judgment Date | 21 March 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0321-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 1989 |
| Docket Number | 89/0298 |
[1989] EWCA Civ J0321-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR JUSTICE WOOD)
Royal Courts of Justice
Lord Justice O'Connor
Lord Justice Croom-Johnson
and
Lord Justice Balcombe
89/0298
MR B. HYTNER, Q.C., and MR G. MEERAN, instructed by Messrs Bates & Partners (London Agents for Messrs Cuff Roberts North Kirk, Liverpool), appeared for the Appellant (Appellant).
MR G.F. TATTERSALL, instructed by Messrs Sharpe Pritchard & Co. (London Agents for R.C. Rees, Esq., Clerk to the Authority, Salford City Council), appeared for the Respondent (Respondent).
This case has run a peculiar course. The applicant, Mr Sheikh, was born in Pakistan and came to this country in 1969 as a child. He formed a desire to join the police force, but it seems he was too young, and so after passing an exam and being interviewed he was on 16th April 1986 appointed as a Special Constable. With a view to joining the regular police force he attended a week-end assessment on 7th November 1986, but on that occasion he failed. On 29th May 1987 he was asked to resign and on 11th June 1987 his period of service as a special constable was terminated.
He alleges that both events were due to racial discrimination, and applied to the Industrial Tribunal. The application in respect of refusal of entry to the Police Force was made under the Race Relations Act 1976 section 4(1) which says:-
"It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another-
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…
(c) by refusing or deliberately omitting to offer him that employment."
It was made out of time but under the Race Relations Act 1976 section 68(6) the tribunal could agree to hear it, if it considered it just and equitable to do so. The tribunal indicated that it would refuse to exercise its discretion and promised to give reasons but did not do so. It was therefore agreed before the Employment Appeal Tribunal that the issue of refusal of entry must be returned to the same tribunal to be dealt with, and that was so ordered.
The dispute as to dismissal from the Special Constabulary was rejected on a preliminary point that the tribunal did not have jurisdiction to entertain the application. The Race Relations Act 1976 section 4(2) states:-
"It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain., to discriminate against that employee-
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…
(c) by dismissing him, or subjecting him to any other detriment."
Section 78 defines "employment" as "employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour, and related expressions shall be construed accordingly".
Before the tribunal it was urged that service as a special constable was a contract to execute work or labour, notwithstanding that a special constable receives no remuneration. What was said to be consideration moving from the Chief Constable, sufficient to support a contract of employment, was a £20 boot allowance and subsistence allowances, the loan of a uniform, the right to a pension in the event of illness or injury contracted while on duty, and exemption from jury service. The tribunal found there was no contract, and declined jurisdiction.
Mr Sheikh appealed, alleging that "the Tribunal had misdirected itself as to the proper test to be applied in determining the question whether the appellant was employed under a contract of service" and "…as to the proper interpretation of the words 'a contract personally to execute any work or labour' in section 78(1)". That, and the grounds supporting it, was the only matter put before the Employment Appeal Tribunal.
It is clear from the judgment that the rejection of the "contract" alleged was the only ground of decision by the E.A.T., a decision which was reached by a majority.
But the E.A.T. went on to say: "However, the majority are greatly exercised by the seeming unfairness of the situation in which the Applicant finds himself. By S.16 of the Race Relations Act 1976 a regular police constable and a police cadet can bring proceedings alleging gross racial discrimination, a special constable cannot," and had carried out further research on its own. Section 16 can be loosely labelled a provision for deemed employment. It concluded, again by a majority, that there were no provisions of the Race Relations Act which enabled him to do so.
There has been some difference of opinion before us as to whether these other matters were even mentioned, let alone relied on, before the E.A.T. Mr Hytner has told us that they were referred to. Mr Tattersall disagrees. I cannot help concluding that since any point on section 16 was not included in the grounds of appeal from the Industrial Tribunal, and it did not form part of the judgment of the E.A.T., if it was mentioned it can only have been a passing reference. Nevertheless, the point based on section 16 figures in the notice of appeal to this court, and Mr Hytner has asked that in any event it should be argued here and considered by us. Mr Tattersall objected. We have a discretion to allow it to be taken. It is a pure point of law. As will appear, our decision on Mr Hytner's alternative point obviously has relevance to the issue which has already been sent back to the Industrial Tribunal concerning the failure to enrol Mr Sheikh as a member of the regular police force. We considered that since the whole matter is also one of general public importance, it would be wrong for this case to go off on the "contract" point alone, and granted Mr Hytner's application, allowing a suitable short adjournment.
The Racial Discrimination Act 1976 section 1 defines discrimination for the purposes of the Act as racial discrimination.
Part II of the Act deals with Discrimination in the Employment Field, and is itself divided into three sections: Discrimination by employers, Discrimination by other bodies, and Police. Section 4 sets out what discrimination is unlawful. Mr Hytner's main point is that a special constable is included in section 16.
Special provision had to be made for the police, because it is trite law that the police are not "employed" in the usual legal sense of that word. They are holders of a public office under the Crown and their authority is exercised by virtue of that office. See Attorney-General for New South Wales -v- Perpetual Trustee Co. (Ld.) [1955] A.C. 457 per Viscount Simonds at page 489. Therefore, unless they were deemed to be in employment by section 16, the Race Relations Act 1976 would have no application to police forces.
At common law, a constable is employed by nobody. The local corporation whose watch committee had established a police force was not vicariously liable for any torts committed by a member of that force. Fisher -v- Oldham Corporation [1930] 2 K.B. 364. Nor is the Chief Constable. Nor is the Crown. It was therefore necessary for vicarious liability to be established by special statutory provision. This is contained in the Police Act 1964. Section 48(1) makes the Chief Constable liable for torts committed by a constable under his direction "in like manner as a master is liable in respect of torts committed by his servants in the course of their employment". Section 48(2) provides for any damages awarded against the Chief Constable "in any proceedings brought against him by virtue of this section" to be met out of the police fund for that police area. This section thus provides a remedy for the innocent victim of a tortious constable, but it does not change the constitutional position.
Accordingly, the Race Relations Act 1976 section 4, which deals with discrimination in relation to employment, cannot be used to apply to a police constable by making use of the definition of "employment" set out in section 78, because the type of contract which is there referred to is a contract of employment which does not cover him. That definition, drawn in the way in which it is, covers not only the ordinary contract of service, but includes contracts for services which are performed by contractors "employed" in the wider sense. It was urged before the Industrial Tribunal, the Employment Appeal Tribunal, and us, that a special constable engages "personally to execute work or labour", and time was devoted to itemising the duties of a special constable and those details of his engagement which are capable of amounting to consideration which can support such a contract. To my mind, this is a misconceived application of sections 4 and 78, because if a special constable can be brought within section 4 by this device, the same reasoning can be used to bring a police constable who is a member of a regular force within it. But the 1976 Act has recognised that in order to apply to police constables a special deeming section, section 16, is needed.
Having said that, it only remains to say what has been put forward as the "consideration" which might bring a special constable within the extended definition of "employment" in section 78 is not capable of doing so. In my view, the Industrial Tribunal and Employment Appeal Tribunal correctly rejected the submissions.
It is the Chief Constable who engages a special constable. There are terms upon which he engages him, but they do not create a contract. They are all at the discretion of the Chief Constable, save for exemption from jury service. As to this, special constables are made ineligible by the Juries Act 1974. Mr Hytner was driven to submitting that if...
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