Wandsworth London Borough Council v Vining and Others
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton MR |
| Judgment Date | 28 July 2017 |
| Neutral Citation | [2017] EWCA Civ 1092 |
| Docket Number | Case No: A2/2016/0201 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2017 |
and
[2017] EWCA Civ 1092
The Master of the Rolls
Lord Justice Beatson
and
Lord Justice Underhill
Case No: A2/2016/0201
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
MRS JUSTICE SLADE
[2015] UKEAT 0234
Royal Courts of Justice
Strand, London, WC2A 2LL
Betsan Criddle (instructed by Unison Legal Services) for the Appellants
Edward Capewell (instructed by Sharpe Pritchard) for the Respondent
Daniel Stilitz QC and Mathew Purchase (instructed by Government Legal Department) for the Interested Party
Hearing dates: 14 – 15 June 2017
Approved Judgment
This is the judgment of the court, to which all the members have contributed.
I. OVERVIEW
This appeal is about the rights of members of local authority parks police forces and of their trade unions. Can they bring claims for "ordinary" unfair dismissal and can their trade unions bring claims for a protective award in respect an alleged failure in collective consultation? In a decision made on 23 January 2013 an employment tribunal held that they could, but in a decision made on 21 December 2015 Slade J, in the Employment Appeal Tribunal ("the EAT"), held that they could not. She allowed an appeal by Wandsworth London Borough Council ("Wandsworth"), the respondent to this appeal. The first two appellants are Maurice Vining and Stephen Francis, who were formerly members of Wandsworth's parks police force. The third appellant is their trade union, UNISON. The Secretary of State for Business Innovation and Skills ("the Secretary of State") is an interested party.
The procedural history of this case has been complicated by a decision of this court on the point handed down after the decision of the employment tribunal but before that of the EAT. On 7 June 2013, in London Borough of Redbridge v Dhinsa and McKinnon [2014] EWCA Civ 178, [2014] ICR 834 (" Redbridge") this court decided that members of local authority park police forces are employed in "police service" and thus prevented by section 200 of the Employment Rights Act 1996 ("the 1996 Act") from pursuing claims for unfair dismissal. It did so as a matter of domestic law. The impact of the Human Rights Act 1998 and the European Convention of Human Rights ("the ECHR") was not before the court.
The appellants' written submissions argued that the Redbridge case was decided per incuriam. That argument is misconceived for the reasons given at para. 21 below. The impact of the rights under the ECHR on the domestic legislation was the central issue in the EAT and is at the core of this appeal. The first of the two questions before this court is the impact of the right under ECHR article 8 to respect for private life, either on its own or in conjunction with the protection from discrimination given by ECHR article 14, on section 200 of the 1996 Act. The second, and closely related, question is the impact of the right under ECHR article 11 to freedom of association on section 280 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act"), which likewise excludes employees in "police service" and their representatives from the redundancy consultation rights conferred by that Act. 1
The remainder of this judgment is organised as follows. Part II sets out or summarises the relevant domestic legislation. Articles 8, 11 and 14 of the ECHR are set out in an appendix. Part III contains the factual and procedural background. Parts IV and V summarise the judgment of the EAT and the grounds of appeal. Part VI contains the analysis and conclusions on the substantive issues before the court. Part VII deals with the disposal of the appeal in the light of those conclusions.
II. THE LEGISLATIVE FRAMEWORK
The provisions of articles 8 and 11 of the ECHR are in the Appendix to this judgment.
Unfair dismissal. Part X of the 1996 Act gives employees the right not to be unfairly dismissed. But section 200, in the section of Part XIII of the Act dealing with "excluded classes of employment", provides:
" Police officers
(1) Sections 8 to 10, Part III, sections 43M, 45, 45A, 47, 47C, 50, 57B and 61 to 63, Parts VII and VIII, sections 92 and 93, and Part X (except sections 100, 103A and 134A and the other provisions of that Part so far as relating to the right not to be unfairly dismissed in a case where the dismissal is unfair by virtue of section 100 or 103A) do not apply to employment under a contract of employment in police service or to persons engaged in such employment.
(2) In subsection (1) 'police service' means—
(a) service as a member of a constabulary maintained by virtue of an enactment, or
(b) subject to section 126 of the Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), service in any other capacity by virtue of which a person has the powers or privileges of a constable."
Redundancy consultation. Section 188 of the 1992 Act imposes a duty on an employer who is proposing to dismiss as redundant 20 or more employees within a period of 90 days or less to consult appropriate representatives of any of the employees. Typically, the "appropriate representative" will be a recognised trade union, and for simplicity we will refer simply to that situation. Sub-section (2) provides:
"The consultation shall include consultation about ways of —
(a) avoiding the dismissals,
(b) reducing the numbers of employees to be dismissed, and
(c) mitigating the consequences of the dismissals, and shall be undertaken by the employer with a view to reaching agreement with the appropriate representatives."
Sections 189–192 contain provisions under which a trade union may bring proceedings in the employment tribunal for breach of that duty and for the making of a "protective award" payable to employees in respect of whom it had been entitled to be consulted. However section 280 provides:
" Police service
(1) In this Act 'employee' or 'worker' does not include a person in police service; and the provisions of sections 137 and 138 (rights in relation to trade union membership: access to employment) do not apply in relation to police service.
(2) 'Police service' means service as a member of any constabulary maintained by virtue of an enactment, or in any other capacity by virtue of which a person has the powers or privileges of a constable."
The effect of excluding persons in police service from the definitions of "worker" and "employee" is that the provisions of sections 188–192 of the Act have no application to the proposed redundancies of such persons; and they and their representatives enjoy none of the rights there accorded.
Parks police. The Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 made provision to secure greater uniformity in the law relating to parks and open spaces in Greater London. Section 1 of the Act stated that the Order in Schedule 1 to it should have full force. Article 18 of that Order provides:
"A local authority may procure officers appointed by them for securing the observance of the provisions of all enactments relating to open spaces under their control or management and of the bylaws and Regulations made there under to be sworn in as constables for that purpose but any such officer shall not act as a constable unless in uniform or provided with a warrant …".
There is an almost identical provision in section 77 of the Public Health Acts Amendment Act 1907, which appears to be applicable outside Greater London.
Parts 5 and 6 of Jackson LJ's judgment in the Redbridge case contain a full discussion of the office of constable and the statutory and common law basis for the powers of those who are sworn in as constables under the 1967 Act and the position of constables in park police forces. It is not necessary to reproduce or summarise them here, save to state that members of the parks police forces look and act like members of a police force but their jurisdiction is confined to the parks and open spaces and they do not have power to enforce the law generally. Jackson LJ's judgment also referred (at paras. 68–69) to the position of members of what he referred to as "the police forces". Members of forces such as the Metropolitan Police, county constabularies, the British Transport Police, the Ministry of Defence Police, and the Civil Nuclear Police have "elaborate remedies" which provide alternative protection to the unfair dismissal provisions in the 1996 Act. We add that members of those forces are members of either the Police Federation, the British Transport Police Federation, the Defence Police Federation, or the Civil Nuclear Police Federation. Those Federations are able to represent the interests of members of the forces in dealings with the official side; i.e. the police forces.
III. THE FACTUAL AND PROCEDURAL BACKGROUND
Because the issue was dealt with as a preliminary issue by the employment tribunal, neither the Employment Appeal Tribunal nor this court has the benefit of findings of fact by the Employment Tribunal. The questions before the court have to be treated in an analogous way to the way pleaded facts are treated when a court considers an application to strike-out a claim, and, as Ms Betsan Criddle stated on behalf of the appellants, on the assumption that the factual cases contained in the two ET1s will be made out. In circumstances where there are no findings of fact, and a matter is disputed, we cannot proceed on any other basis. For instance, in relation to article 8, Ms Criddle invited us to proceed on the basis that the consequences alleged as a result of the...
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