England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay Presiding)

		Royal Courts of Justice Strand London WC2
		24th May 2002

1. LORD JUSTICE PETER GIBSON: The issue raised by this appeal is whether prior to 2nd April 2000, when the Race Relations Amendment Act 2000 ("the 2000 Act") came into force, a chief constable was liable under the Race Relations Act 1976 ("the 1976 Act") in respect of acts of discrimination committed by his officers against another officer. It is an appeal by Cheryldeen Liversidge, a black woman police constable in the Bedfordshire Police, against the order of the Employment Appeal Tribunal ("the EAT"), Mr Justice Lindsay presiding, on 21st September 2001. Thereby the EAT allowed the appeal of the respondent, the Chief Constable of Bedfordshire, against the refusal of an Employment Tribunal sitting in Bedford to strike out a claim that the respondent was liable for acts of racial discrimination against her by officers in the Bedfordshire Police. The judgment of the EAT is now reported at [2002] IRLR 15. Sedley LJ refused Mrs Liversidge permission to appeal on paper, but on a renewed application this court (Waller and Sedley LJJ) granted permission. We are told that there are 86 other pending cases in which a similar issue is raised. Our decision may also affect cases under the Sex Discrimination Act 1975 ("the 1975 Act"), the provisions of which are strikingly similar to those of the 1976 Act in material respects. The 1975 Act has not been the subject of amendments such as have been effected to the 1976 Act by the 2000 Act.
2. The factual background can be stated shortly. Mrs Liversidge, acting in person, on 12th August 1999 presented an originating application to the Employment Tribunal, complaining against Bedfordshire Police and PC Fitzgibbon of racial discrimination. She said that between 21st and 24th June 1999 she became aware in the course of her duty that she had been the subject of racial abuse. She claimed that she had been described by her colleagues as "PM" (standing for "porch monkey"), which, she said, was a derogatory term for black women in southern states of America. She said that the matter had been the subject of an internal investigation. So unparticularised were the allegations that Mrs Liversidge on 17th September 1999 was ordered by the Employment Tribunal to give further particulars. On 1st October she gave further details. She alleged that PC Fitzgibbon was the instigator and/or used the term "PM" (standing for "porch monkey") in the course of his employment as a police officer at Dunstable Police Station, referring to her. She was not present when PC Fitzgibbon used the term, but she became aware of its usage in the station by male members of her section when she was approached by a detective sergeant at Dunstable on 23rd June 1999. She said that she had made further enquiries of colleagues to establish that it was PC Fitzgibbon who had used the term about her.
3. Both the Chief Constable and PC Fitzgibbon denied the allegations. PC Fitzgibbon made counter allegations against her of sexual harassment. The Chief Constable instigated enquiries and brought disciplinary charges against her. Solicitors for Mrs Liversidge presented a second originating application on 16th February 2000. This time she only named the Chief Constable of Bedfordshire as a respondent. She complained of race discrimination and/or victimisation pursuant to section 4(2) and section 2(1)(a) and (b) of the 1976 Act. She alleged that the investigation by the police into her complaint had been inadequate and that the Chief Constable's action in bringing disciplinary charges against her constituted sex discrimination and/or victimisation. She further alleged that the Chief Constable did not investigate her complaint with the same energy, commitment and competence compared with the way PC Fitzgibbon's counter allegations had been investigated.
4. The Chief Constable denied the allegations in the second originating application. PC Fitzgibbon then presented two originating applications to the Employment Tribunal against the Chief Constable, alleging sexual discrimination by Mrs Liversidge for which the Chief Constable, he said, was responsible.
5. There was a hearing for directions before a Chairman of the Employment Tribunal on 10th April 2000, when Mrs Liversidge was represented by junior counsel. The decision of the Chairman records her order that Mrs Liversidge's complaint against PC Fitzgibbon was dismissed upon withdrawal. The Chairman also ordered Mrs Liversidge's two originating applications against the Chief Constable to be combined and heard together. She further ordered that PC Fitzgibbon's originating applications be heard by a different employment tribunal on a different date, that being what the legal representatives for Mrs Liversidge and PC Fitzgibbon had sought.
6. On 6th June 2000 Mrs Liversidge gave further particulars of her originating application. She was asked whom she accused of describing her as "PM" and when they did that. She replied that male members of her section at Dunstable Police Station including PC Fitzgibbon had done so over a period of time. Further particulars were given about the allegations concerning the investigation of her complaints, and Mrs Liversidge has repeated and expanded her allegations in witness statements.
7. On 13th June 2000 Mrs Liversidge's two cases came on before the Employment Tribunal at a further directions hearing. The Chief Constable made four applications. The first was that any complaint relating to PC Fitzgibbon in the first originating application should be struck out as res judicata, because the complaint against him had been dismissed following withdrawal of the claim against him. The second was that the rest of the originating application should be struck out in any event, not being properly particularised. The third was that there should be an adjournment. The fourth was that the allegation of victimisation in the second originating application should be struck out as not having been incorporated in Mrs Liversidge's claim at the outset.
8. The orders made by the Employment Tribunal were these. On the first application the claim against PC Fitzgibbon and the corresponding claim of vicarious liability of the Chief Constable for the police constable's acts were res judicata by reason of Mrs Liversidge's withdrawal of the claim against PC Fitzgibbon. But the remaining allegations in the first originating application were allowed to proceed. The Employment Tribunal said that, having withdrawn the complaint against PC Fitzgibbon, Mrs Liversidge could not adduce evidence as to the activities or conduct of PC Fitzgibbon, nor could she make allegations as to the Chief Constable's vicarious responsibility for that conduct. That appears to relate only to the first originating application. The second application to strike out the rest of that originating application failed. The fourth application also failed, the Employment Tribunal directing that the allegations of victimisation in the second originating application were to proceed to a hearing. On the third application the Employment Tribunal directed an adjournment, but gave other directions for the hearing of the claims that survived.
9. The Chief Constable appealed to the EAT against the Employment Tribunal's refusal to strike out the first originating application, and Mrs Liversidge cross appealed against the Employment Tribunal's ruling on evidence and allegations as to the Chief Constable's vicarious liability for PC Fitzgibbon's conduct.
10. The EAT in their reserved judgment identified the two questions before them as being:

(1) whether all, or any, and if so which parts, of the first originating application should be struck out under rule 13(2)(d) of the Employment Tribunal Rules 1993 or for any other reason; and

(2)if the whole of that originating application were not struck out, could Mrs Liversidge at the substantive hearing adduce evidence as to PC Fitzgibbon's activities and conduct?

11. The EAT first considered the nature of the claim sought to be struck out. They identified a claim, which they called one of constructive liability, falling within the originating application, as being that the Chief Constable was liable to Mrs Liversidge in respect of the alleged abuse by officers at Dunstable Police Station. The EAT rejected an argument from Mrs Liversidge that there was also a claim for primary liability on the part of the Chief Constable for causing or permitting the abuse in circumstances where he could control whether it happened or not.
12. The EAT then referred to an argument not raised at the Employment Tribunal, which the EAT themselves raised in the course of the argument before them and which the parties addressed in written submissions. This was a route, alternative to rule 13(2)(d), for saying that Mrs Liversidge's claims could not succeed. The argument was based on the provisions in the 1976 Act relating to the liability of the Chief Constable for the acts or omissions of his officers. The EAT held that section 16 did not make the Chief Constable liable for the acts of one police constable against another and that sections 32 and 33 did not assist. The EAT reluctantly reached the provisional conclusion that Mrs Liversidge had no right under section 16 to proceed against the Chief Constable as she had done in the first originating application.
13. They then considered the legislative history of the 1976 Act and what was said in Parliament during the passage of the Bill which became the 2000 Act. That Act repealed section 16 and added a section 76A to the 1976 Act. The EAT also considered section 88(1) of the Police Act 1996, which they contrasted with section 54 of the 1976 Act, and held that because of section 53(1) of the 1976 Act, unless a complaint fell within section 54, it could not be presented to the Employment Tribunal. The EAT looked at a number of authorities. Among them was another decision of the EAT, Morison J presiding, AM v WC [1999] ICR 1218, but declined to follow it. They held that there was no authority binding on them to require them to depart from their provisional view that Mrs Liversidge had no right in law to claim against a chief constable, as she had done by the first originating application. They accordingly held that the whole of that originating application should be struck out. The cross-appeal therefore did not arise.
14. At the oral hearing of the application for permission to appeal Mrs Laura Cox QC, appearing with Miss Omambala for Mrs Liversidge, argued that section 75 of the 1976 Act applied to police constables and that section 32 was also applicable. This court was persuaded that this was an appropriate case to allow to go to appeal, not least because of the public importance of the issue whether chief constables are answerable for acts of discrimination by their officers.
15. I now turn to the relevant statutory provisions. Those in force at the relevant time are contained in the 1976 Act, which replaced the Race Relations Act 1968 ("the 1968 Act"). The 1976 Act was not a consolidation act, but made fresh provisions with respect to discrimination on racial grounds. In between the two Acts came the 1975 Act. The relevant provisions of the 1976 Act are deliberately couched in language identical to that of the 1975 Act, and it is unlikely that their meaning would differ from that of the 1975 Act, unless it be the case that the Equal Treatment Directive 76/207 and other applicable EU provisions require a special meaning to be given to the 1975 Act.
16. I start with the relevant provisions of the 1976 Act, which are of general application.

Part I identifies the discrimination to which the 1976 Act applies. It does so by defining some of the key terms. In section 1(1) one finds what is discrimination by one person against another in any circumstances relevant for the purposes of the Act. Thus, it includes direct discrimination in the form of one person on racial grounds treating another less favourably than he would treat another person: section 1(1)(a). It also includes indirect discrimination. Section 2 defines discrimination by victimisation.

Part II covers discrimination in the employment field. The term "employment" is defined in section 78(1). That subsection contains interpretation provisions which are to apply "unless the context otherwise requires". One provision is:

"`employment' means 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."

17. By section 4(2)(c) it is unlawful for an employer to discriminate against an employee by dismissing him or subjecting him to any other detriment. Part II extends what under the general law is employment to other areas. Part III covers discrimination in other fields and in particular deals with services.

Part IV relates to other unlawful acts. Section 32 in Part IV governs the liability of employers and principals of agents. It provides:

"(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act (except as regards offences thereunder) as done by that other person as well as by him.

(3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practical to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

18. As the EAT pointed out, section 32(1) is not a provision making the employer vicariously liable for the acts of the employee, but one deeming the employer also to have done the employee's acts. But it only applies to a situation where there are an employer and an employee. Similarly, section 32(2) deems the principal of an agent who has done an act with the principal's authority to have done that act also. Section 32(3) provides an employer with a special defence if he satisfies the conditions of the subsection. It is to be noted that those provisions are expressed to apply quite generally apply for the purposes of the 1976 Act, not just to one or more Parts of the Act.
19. Section 33(1), also in Part IV, applies to a person aiding unlawful acts, and deems that person, knowingly aiding another to do an act made unlawful by the 1976 Act, to himself do the unlawful act. Section 33(2) provides that:

"For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 32 (or would be so liable but for section 32(3)) shall be deemed to aid the doing of the act by the employer or principal."

Part VIII relates to enforcement. Section 53 restricts proceedings for breach of the 1976 Act by providing that:

"(1) Except as provided by the Act no proceedings, whether civil or criminal, shall lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of this Act."

20. Section 54 provides:

"(1) A complaint by any person ("the complainant") that another person ... -

(a)has committed an act of discrimination against the complainant which is unlawful by virtue of Part II; or

(b)is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination against the complainant, may be presented to an employment tribunal."

Thus, in the present case, Mrs Liversidge must bring herself within section 54(1)(a) or (b) if her proceedings commenced in the Employment Tribunal are to be sustainable.

21. I pause at this point to consider the ordinary employment position, not involving a special category of workers such as the police, where employee A makes a remark racially abusive of employee B in the course of employment. Employee A, it can be argued, racially discriminates against employee B under section 1(1)(a). But that has no effect unless the 1976 Act makes it an unlawful act. It may become so under section 4. The employer, it can be argued, is then liable for an unlawful act under section 4(2)(c) by virtue of section 32(1) (see Jones v Tower Boot Company Ltd [1997] ICR 254). The employer may also be liable directly for the discrimination if what was done by employee A was sufficiently under the control of the employer that he could have prevented what was done (see Burton v De Vere Hotels [1996] IRLR 596).
22. The provisions of the 1976 Act which expressly or arguably apply to the police are these. Section 16 in Part II makes special provision in relation to the police. Subsection (1) is in this form:

"For the purposes of this Part, the holding of the office of constable shall be treated as employment-

(a)by the chief officer of police as respects any act done by him in relation to a constable or that office;

(b)by the police authority as respects any act done by them in relation to a constable or that office."

23. By subsection (2) provision is made for payments out of the police fund in respect of liability under the Act. Subsection (3) is in this form:

"Any proceedings under this Act which, by virtue of subsection (1), would lie against a chief officer of police shall be brought against the chief officer of police for the time being or, in the case of a vacancy in that office, against the person for the time being performing the functions of that office, and references in subsection (2) to the chief officer of police shall be construed accordingly."

24. The term "chief officer of police" is defined in section 16(5) by reference to the definition in the Police Act 1996 ("the 1996 Act"). It includes a chief constable.
25. Section 75, headed "Application to Crown etc", provides so far as relevant:

"(1)This Act applies-

(a)to an act done by or for the purposes of a Minister of the Crown or government department; or

(b)to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,

as it applies to an act done by a private person.

(2)Parts II and IV apply to-

(a)service for purposes of a Minister of the Crown or government department, other than service of a person holding a statutory office; or

(b)service on behalf of the Crown for purposes of a person holding a statutory office or purposes of a statutory body; or

(c)service in the armed forces,

as they apply to employment by a private person, and shall so apply as if references to a contract of employment included references to the terms of service.

(3)Subsections (1) and (2) have effect subject to section 16."

26. Section 75(5) contains its own extended definition of "employment", which is given the meaning of including service of any kind.
27. Section 75(10)(b) defines two of the terms to be found in sections 75(1) and (2):

"`statutory body' means a body set up by or in pursuance of an enactment, and `statutory office' means an office so set up."

28. I should also note, if only to contrast, section 88 of the 1996 Act, subsection (1) of which provides:

"The chief officer of police for a police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of that employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor."

29. The way section 88 operates is by imposing true vicarious liability on chief officers of police for their constables' torts. This is quite different from the constructive liability imposed on employers by section 32, which deems the employer himself to have committed the act of discrimination committed by the employee.
30. I would emphasise that in these proceedings it has not yet been decided that derogatory remarks were made about Mrs Liversidge, nor that they constituted discrimination within the meaning of the 1976 Act. We, however, must proceed on the assumption that they were and that, if the Chief Constable is to be treated as the employer of any maker of such remarks, and if he is also to be treated as having made the remarks himself and does not come within the special defence of section 32(3), Mrs Liversidge would have been subjected to a relevant detriment, so that there would be unlawful discrimination by the Chief Constable.
31. Mrs Cox has identified two issues as falling for determination:

(1) the extent of the chief officer's liability under the 1976 Act for acts of race discrimination committed by his or her police officers;

(2)whether a chief officer can be vicariously liable under the 1976 Act for the discriminatory acts or omissions of individual police officers against other officers in the course of their work.

32. What she calls "vicarious liability" is the constructive liability, to which I have referred, imposed on employers under section 32(1).
33. She submits that there are two routes by which the chief officer is fixed with liability:

(i)By a purposive construction of the 1976 Act, and in particular sections 16, 32 and 78;

(ii)by the provisions of section 75.

(i) Purposive Construction

34. Mrs Cox placed at the forefront of her argument a submission that the 1976 Act requires a purposive construction and that the EAT erred in failing to give such a construction to the relevant sections.
35. She referred us to the often cited remarks of Templeman LJ in Savjani and Commissioners of Inland Revenue [1981] QB 458 at 466:

"The [1976] Act was brought in to remedy a very great evil. It is expressed in very wide terms, and I should be slow to find that the effect of something which is humiliatingly discriminatory in racial matters falls outside the ambit of the Act."

36. She relied, in particular, on the judgment of Waite LJ in Jones at pages 261-2. In that case the question for the court was whether the phrase in section 32(1) "in the course of employment" should be given the meaning which it has in every day speech or should be given a meaning which accords with the principles laid down by cases for the establishment of the vicarious liability of an employer for the torts committed by his employee in the course of his employment. At page 262 he held that the phrase required a purposive construction. He defined the principle at pages 261-2 as being:

"... that a statute is to be construed according to its legislative purpose, with due regard to the result which it is the stated or presumed intention of Parliament to achieve and the means provided for achieving it."

37. He said at page 262 H:

"A purposive construction accordingly requires section 32 of the Race Relations Act 1976 and the corresponding section 41 of the Sex Discrimination Act 1975 to be given a broad interpretation. It would be inconsistent with that requirement to allow the notion of the `course of employment' to be construed in any sense more limited than the natural meaning of those everyday words would allow."

38. Mrs Cox referred us to the speech of Lord Bingham in Anyanwu v Southbank Student Union [2001] ICR 391 at 392, where he mentioned with approval what Waite LJ had said. As I understand her, Mrs Cox submits that the relevant purpose is the inclusion of the police in the employment field without any restrictions on that inclusion, save for the allocation as between the chief officer of police and the police authority, of liability as deemed employer.
39. For my part, I have no difficulty in accepting that a statute like the 1976 Act should be construed purposively, provided that it is understood what that properly means. The function of the court in construing a statute is to give effect to the intention of Parliament. Normally that involves ascertaining the intention from the words used in the Act. It is often easy to say what the general thrust of legislation is. Discrimination Acts are intended to deter and combat discrimination. But it is important not to lose sight of the fact that such Acts are not intended to be completely comprehensive, in the sense of making all discrimination unlawful. Thus, the 1975 Act preamble states that it is an Act to render unlawful certain kinds of sex discrimination. Provisions within Discrimination Acts often contain limitations and conditions, and it is impermissible to rely on the general purpose of the Act to construe the Act in a way that eliminates those qualifications, even though so to eliminate the qualifications would leave the Acts with a wider reach. What a purposive construction does allow the court to do is to construe a provision which permits of two possible meanings in a way which gives effect to the identified purpose. The Jones case is a good example of that. Often it will be difficult to find a clear indication of the purpose of a specific provision.
40. Sometimes it will be possible to obtain help from a permissible source outside the Act. Even before Pepper v Hart [1993] AC 593, it had been the practice of the courts to allow recourse to White Papers and official reports, such as Law Commission reports, to find the mischief sought to be countered: see Pepper v Hart at page 635 per Lord Browne-Wilkinson. Mrs Cox showed us the White Paper published in 1975 heralding the Bill which was to become the 1976 Act. That White Paper contained general statements of the Government's proposals to strengthen the law and to make the provisions against racial discrimination more comprehensive and its enforcement more effective. But the closest it gets to dealing specifically with the police is a statement that the new provisions were to bind the Crown. Mrs Cox in the course of her argument indicated that she was proposing to put before us material from Parliamentary debates. When we asked on what basis that material was admissible, she said that it was because the legislation -- and she mentioned in particular section 16 -- was ambiguous. I accept that if there be an ambiguity, and if there are statements made by a Minister or other promoter of a bill which are clear and can help to resolve the ambiguity, those statements can be admitted under Pepper v Hart: see page 640 per Lord Browne Wilkinson.
41. The first task therefore for Mrs Cox was to make good her submission that section 16(1) was ambiguous. She did not go so far as to say that the construction given to section 16(1)(a) by the EAT was not a possible construction, that is to say that the deemed employment of a constable by the chief officer of police was limited to acts done by the chief officer in relation to the constable or the office of constable. But she said that there was another possible construction which was not so limited.
42. She gave us five reasons why section 16 was ambiguous:

(1)The opening words of section 16(1) "for the purposes of this Part" recognise that deeming the holding of the office of constable to be employment by the chief officer of police or the police authority is limited to the employment field.

(2)The purpose of section 16(1) was to identify which of the chief officer and the police authority is to be treated as the employer.

(3)Section 4 specified many unlawful acts of the employer, and many of them would be acts for which the chief officer or the police authority would not be personally liable.

(4)The omission from section 16(1) of the word "only" after "chief officer of police" (and I imagine by the like token from after "police authority") is significant.

(5)The words "in relation to a constable" in section 16(1)(a) and (b) are broad enough to cover discriminatory acts by one officer against another officer.

43. The first three reasons are unexceptionable propositions but do not begin to show any ambiguity in section 16(1). The fourth is an impossible reason. The absence of the word "only" cannot mean that the holding of the office of constable was to be treated as employment by the chief officer not only as respects any act done by him in relation to a constable or his office, but also as respects any other act done by any other person. At one stage Mrs Cox readily accepted she was reading section 16(1) as though "by him" or "by them" were deleted. But that would leave wholly uncertain who was to be treated as the employer. Mrs Cox said that that was to be determined having regard to the respective functions of the chief officer and the police authority, but the section does not say so. She accepted the suggestion from the Bench that she wanted the words "or treated as having been done by him" written into section 16(1)(a) by reference to section 32(1), but section 16 does not apply to Part IV and so does not apply to section 32. Further, the words are not to be found in the section, and one has only to look at section 54(1) to see that the draftsman, when he wanted the deeming provision of section 32 to apply, expressly says so. Mrs Cox sought help from section 16(3) recognising, as it does, that the chief officer's position may be temporarily vacant when a complainant brings proceedings. But that shows the care with which the draftsman expressly dealt with possible situations, there the temporary vacancy in respect of a chief officer of police. It certainly does not disclose any ambiguity.
44. Mrs Cox's fifth reason is no less unconvincing. The words "in relation to a constable" qualify "any act done by [the chief officer of police]". They cannot possibly extend the scope of section 16(1)(a) to acts done by a constable against another constable without a rewriting of the section.
45. I am unable to accept that Mrs Cox's reasons, whether taken singly or cumulatively, show any ambiguity in section 16. I therefore do not understand how there is scope for construing the clear words of section 16(1) in some other sense by reference to the claimed purpose of the Act, viz. that the police were to be included in the employment field quite generally. On the contrary, not only is the language of section 16(1) clear, but the contrast with the language of the 1968 Act is striking. In section 27(4) of that Act it was expressly provided that for the purposes of the Act the office of constable should be treated as if it were employment and that for those purposes a constable should be treated as if he were employed by the authority by whom he was appointed. In section 27(4) the words "the authority" appear to cover both a chief officer of police and a police authority. The breadth of language in the 1968 Act is to be contrasted with the circumscribed language of section 16(1). The draftsman of the 1975 Act and the draftsman of the 1976 Act borrowed pieces of the wording of the 1968 Act (compare, for example, section 13 of the 1968 Act with section 41 of the 1975 Act and section 32 of the 1976 Act) but not the wording of section 27(4). Although Mrs Cox repeatedly told us that the result that section 16(1) is limited, as the EAT found it to be, could not have been intended by Parliament, the use of language different from section 27(4) in both the 1975 Act and the 1976 Act can only be treated as having been deliberate.
46. Mrs Cox then placed particular reliance on the decision in AM v WC, which she said was to be preferred to the decision of the EAT in the present case. That decision arose out of facts not dissimilar to the present case in that the applicant woman police constable was alleging discriminatory acts by another constable, a sergeant but the complaint was one of sexual harassment rather than racial discrimination. The sergeant applied successfully to an Employment Tribunal to be dismissed from the proceedings on the ground that the 1975 Act did not apply as between the applicant and the sergeant, and the sergeant was not an employee within the meaning of section 41 (corresponding to section 32) of the 1976 Act, or of section 42(2) (corresponding to section 33(2)). The EAT allowed the appeal of the applicant, holding that the sergeant was an employee and that the Chief Constable was an employer. The EAT held that the sergeant was made liable by section 42(2). In so doing the EAT held that the Chief Constable was liable subject to the special defence in section 41(3). It is to be noted that in that case the Chief Constable is recorded as supporting the applicant's argument.
47. On the points relevant to the present case, the reasoning of the EAT and my comments on that reasoning are as follows. First, the EAT said that because of (a) public policy and (b) a plain reading of the Act, Parliament could not have intended what the discriminator argued was the way section 17 (corresponding to section 16 of the 1976 Act) applied. The argument was that section 17 did not give rights in respect of acts done by one constable against another, and that the opening words "for the purposes of this Part" meant that the protection provided by that section only applied to Part II and not to Part IV. I would comment that the EAT did not explain, and I cannot understand, how public policy was involved. Nor did they explain how the limited wording of section 17(1) accorded with the view of the EAT that section 17 did apply to acts done by one constable against another. Further, the EAT accepted the argument of the applicant that it was significant that the opening words of section 17(1) were not "for the purposes only of this Part". I have to say that that argument seems to me unsustainable if the opening words are to have any useful meaning.
48. Second, the EAT said that the purpose of section 17 was to bring the police within the 1975 Act as regards the employment field and to identify the employer liable under section 6 (corresponding to section 4 of the 1976 Act). That is correct as far as it goes. But the 1975 Act brought the police within the employment field, and it identified the deemed employer's liability, in a noticeably limited way, in contrast with the 1968 Act. The EAT did not advert to that limiting or that contrast.
49. Third, the EAT said that without section 41 (section 32 of the 1976 Act) the protection afforded by section 6 would be largely emasculated, and without section 41 a police constable would effectively be unprotected. I agree that the effectiveness of the protection for constables is diminished if section 41 does not apply, as prima facie it does not because section 17 is limited to Part II, and if the deemed employer is only liable for acts done by him. But as Mr Rose QC for the Chief Constable said, it cannot properly be said that such a construction leaves section 17 without utility. Under section 13(3) of the 1996 Act the Chief Constable makes appointments and promotions to any rank below that of Assistant Chief Constable. Under section 69 of that Act he has wide powers in respect of complaints against officers, other than senior officers, not being complaints justifying criminal and disciplinary proceedings. Under the Police Regulations 1995 he has power to appoint part-time officers. Under the Police Conduct Regulations 1999 he has the power to suspend officers and he is required to act as reviewing officer if a sanction is imposed. Under the Police Efficiency Regulations 1999 he acts as a reviewing body if a sanction for poor performance is imposed. No doubt he will be able to delegate some of the functions, but he may himself be liable under section 41(2) of the 1975 Act as principal.
50. Fourth, the EAT said that the purpose of section 41 was to protect employers from liability for acts committed by their staff outside the scope of their employment and to give the employer the special defence of section 41(3). That is a somewhat strange description of the purpose of section 41. That purpose is plainly to make employers liable for the discriminatory acts of their employees in the course of employment, but to provide a special defence for those who come within section 41(3).
51. Fifth, the EAT said that there was nothing to suggest that sections 41 and 42 do not apply to "employees of the police force". I do not agree. That betrays the assumption made by the EAT that constables are employees. Section 16 recognises that constables are not employees, save when deemed to be so, and there is nothing in sections 41 and 42 to suggest that those sections do apply to constables.
52. Sixth, the EAT said that there is no indication in the legislation that Parliament intended the police to be singled out by section 41 not being applicable. That was said to be contrary to the intention of Parliament, as evidenced by the observations of the Minister, Lord Harris of Greenwich, in the House of Lords in the debate on the Bill which became the 1975 Act (Hansard 1st July 1975, page 100):

"I should make it clear, however, that we have not sought to exclude Home Office services from the scope of this legislation. In particular, both the police and the prison service are covered. As regards the police, there is complete integration in the Metropolitan Police. Outside London there are separate establishments for men and women police officers. ... Under the terms of the Bill, the police will have to consider applicants for posts solely on the qualifications required for the service or for the particular post, and select the best one, man or woman. A number of jobs in the police and the other Home Office services may fall within the scope of Clause 7 of the Bill, but the point is that we are subjecting these services to exactly the same tests as any other employer."

53. I do not understand how, consistently with the principles of Pepper v Hart, that statement was admissible. To say, for example, that the police are covered by the scope of the legislation is far too general a statement to provide assistance, even if, which I do not accept, the legislation were ambiguous. With all respect to the EAT, they seem to have proceeded from an assumption as to what was intended by Parliament rather than from a full examination of the specific language of section 17.
54. I conclude that the decision in AM v WC, so far as it relates to the liability of the Chief Constable, was wrong and that the EAT in the present case were right not to follow the earlier decision.
55. Next Mrs Cox criticised the EAT for failing to adopt a purposive construction of section 32. She again relied on Waite LJ's commentS in Jones at page 262 that the natural meaning of the words "in the course of employment" should be their everyday meaning, and she submitted that such meaning required the service of a constable to fall within those words. But the point which was being addressed in Jones was not concerned with the distinction between employment and other forms of work not regarded in law as employment, but with the point to which I have already drawn attention, that is to say the scope of the meaning of the words "in the course of employment". This court held that those words were not limited to what weas treated as being in the course of employment in cases of vicarious liability for tort. Jones is therefore of little assistance in construing the 1976 Act which recognises in section 16 that a deeming provision is needed to make the service of a constable employment.
56. As we have seen, section 16 applies only for the purposes of Part II and not for Part IV, and so on its face it does not apply to section 32. Section 32 contains various references to employment, employer and employee; and in the absence of a deeming provision to give those references a meaning wider than those given in section 78, I cannot see how section 32 can be construed in a way other than the way it was construed by the EAT. Again I find no ambiguity in the section, and a purposive construction does not assist.
57. Mrs Cox next relied on the definition of "employment" in section 78(1), which she said should be interpreted to include the service of an office holder, even though she acknowledged that the definition did not expressly extend to include such service. But she said that was unnecessary having regard to section 27 of the 1968 Act which made the intention clear.
58. Section 27(4), so far from being of help to Mrs Cox, is an obstacle, as it seems to me, in her path because of the contrast in language with section 16. Further, the point was considered in Sheikh v Chief Constable of Greater Manchester Police [1989] ICR 373. At page 377B Croom-Johnson LJ, with whom O'Connor LJ agreed, said that the definition of "employment" in section 78 referred to a type of contract which did not cover a constable. Mrs Cox said that that case was decided before the Jones case and that a different approach now prevailed. I do not agree. Croom-Johnson LJ in my judgment was plainly right in the views which he expressed.
59. What it seems to me Mrs Cox really has to say is that the context of section 32 does otherwise require so that the defined meaning in section 78 is not applicable. But that is difficult to sustain. The phrase "unless the context otherwise requires" is a familiar one in interpretation sections in many, if not most, Acts. Those words have been interpreted as only permitting the statutory definition to be ignored where the context compels it. But unless there is that degree of compulsion, the statutory meaning will be given to the term (see Re Gaul and Houlston's Contract [1928] Ch 689 at page 700 per Lawrence LJ, and my own comments in Melville v Commissioners of Inland Revenue [2001] STC 1271 at page 1278.)
60. Although Mrs Cox asserted that that view of "unless the context otherwise requires" did not apply to the 1976 Act, I am unable to see why that should be so, particularly as in the 1976 Act the draftsman has shown in section 75(5) that where a special meaning of "employment" is intended to be given to a particular provision, a special definition is included.
61. It follows that I am unable to see any ambiguity in any of the relevant provisions to enable recourse to what was said in Parliament. Although we did not rule on Mrs Cox's submission until this judgment, she did not show us the further Parliamentary material to which she alluded, rightly anticipating that we would not accept its admissibility. It also follows that I reject the first way in which Mrs Cox puts the case.

(ii) Section 75

62. Mrs Cox then argues that section 75(1), not section 16(1), is the correct starting point for considering the extent of the chief officer's liability under the 1976 Act. She submits that either the office of constable is a statutory office, or the service of a constable is service on behalf of the Crown for the purposes of a person holding a statutory office, and that a chief officer is the relevant person holding the statutory office.
63. On the first limb of that submission she says that the office of constable, whilst originally rooted in the common law, is now an office set up by, or in pursuance of, statute. She referred in her skeleton argument to a number of nineteenth century Police Acts, going back to the Metropolitan Police Act 1829, and she showed us the County Police Act 1839. She said that statutes now so regulate the police that constables are not to be treated any longer as holding a common law office. They are, she argued, holders of a statutory office. Those early Acts did not, in my judgment, set up the office of constable, but subjected those applying for the office and the holder of the office to various requirements and controls. A constable is not, in my view, the holder of a statutory office but is the holder of an office at common law. The position was stated by Chief Justice Griffith in the High Court of Australia in Enever v The King (1906) 3 CLR 969 at 975 in a passage cited with approval by Viscount Simonds, giving the judgment of the Privy Council in Attorney General for New South Wales v Perpetual Trustee Co Ltd [1955] AC 457 at page 478:

"At common law the office of constable or peace officer was regarded as a public office, and the holder of it as being, in some sense, a servant of the Crown. The appointment to the office was made in various ways, and often by election. In later times the mode of appointment came to be regulated for the most part by Statute, and the power of appointment was vested in specified authorities, such as municipal authorities or justices. But it never seems to have been thought that a change in the mode of appointment made any difference in the nature or duties of the office, except so far as might be enacted by the particular Statute."

64. At page 489 Viscount Simonds summed up in this way:

"... there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract."

65. Those words were cited by Croom-Johnson LJ in Sheikh at page 376 with approval in the context of the 1976 Act.
66. Other statements in text books confirm the position today. Thus, in Halsbury's Laws, volume 36(1) 4th Edition Reissue (1999), paragraph 201, it is stated:

"The history of the police is the history of the office of constable, and notwithstanding that present day police forces are the creation of statute and that the police have numerous statutory powers and duties, in essence a police force is neither more nor less than a number of individual constables, whose status derives from the common law, organised together in the interests of efficiency."

67. In paragraph 202:

"Various enactments were passed in the nineteenth and twentieth centuries providing for the establishment of police forces comprising constables appointed in the manner laid down in the relevant enactment, and the organised police force was thus superimposed on the office of constable."

68. Then a little later:

"The authority of a member of a police force arises directly from his having been sworn to serve the Sovereign in the office of constable and his status is derived from that of the common law constable."

69. Finally, in paragraph 204:

"A member of a police force, of whatever rank, when carrying out his duties as a constable acts as an officer of the Crown and a public servant. His powers, whether conferred by common law or statute, are exercised by him by virtue of his office, and unless he is acting in execution of a warrant lawfully issued can only be exercised on his own responsibility."

70. I therefore reject the submission that the constable is the holder of a statutory office. I would add that in any event, insofar as Mrs Cox is relying on the route provided by section 75(1)(b), section 75(3) makes clear that subsection (1) of section 75, like subsection (2), is subject to section 16. Section 16 has primacy and is unaffected by section 75(1).
71. There is more to be said for Mrs Cox's submission based on section 75(2)(b) that the office of a Chief Constable is set up by statute. A police force maintained under the 1996 Act is required to be under the direction and control of a Chief Constable who is to be appointed by the police authority (section 11(1) of the 1996 Act). But it seems to me to be a wholly unnatural description of the service of a constable that his service is on behalf of the Crown for the purposes of a chief officer of police. His service, as it seems to me, is for the purposes of the Crown; and to say that his service is for the purposes of a chief officer fits ill with what we have seen to have been the recognition that the constable acts under his own original authority at his own discretion. The constable is not the agent of the Chief Constable (see Farah v Commissioner of Police for the Metropolis [1998] QB 63).
72. But even if those difficulties could be overcome, there are further obstacles in Mrs Cox's way. She wishes to use section 75(2)(b) in conjunction with section 32 and section 16. She says section 75(2)(b) requires PC Fitzgibbon to be treated as being in employment for the purposes of Part II and Part IV. Thus, she says, section 32(1) applies to that employment, so that the employer is deemed to have done the discriminatory acts done by PC Fitzgibbon, and section 16 tells one who is the employer of the constable. Again she says that in section 16 the words "act done by him" include an act deemed by section 32(1) to be done by the chief officer of police.
73. The riposte of Mr Rose, in an argument to whose lucidity I would pay tribute, was that section 75(3) in any event expressly makes section 75(2), like section 75(1), subject to section 16. Again that means that section 16 has primary effect and is unaffected by those subsections. As Lindsay J pointed out, section 75(2)(b) does not assist Mrs Liversidge as it does not extend section 16, which is limited in its application to the purposes of Part II. I again repeat that the words which Mrs Cox seeks to write into section 16(1) are not there. Further, Mr Rose submits that the structure of section 75(1) and (2) in any event does not permit the application of section 75(2) to the discriminator, but rather to the victim of the discrimination. Section 75(1), making the whole Act apply to an "act done", plainly relates to the act of the discriminator.
74. Section 75(2) is quite different in scope. It makes Parts II and IV apply to the service of particular Crown servants, and he says that the subsection relates only to the victim of the discrimination. It cannot be applied to the discriminator as though it were an alternative to subsection (1), as otherwise why is the scope of its application limited to Parts II and IV rather than to the whole Act? In Knight v Attorney General [1979] ICR 194, the EAT, Slynn J presiding, accepted an argument on those lines. Mrs Cox had no answer to this point, which seems to me to be correct.
75. Accordingly, I would hold that the second route by which Mrs Cox sought to make the Chief Constable liable is equally barred to her.
76. For these reasons, therefore, I have not been persuaded that the EAT erred in any way in concluding as they did that the Chief Constable is not liable under the 1996 Act in respect of the discriminatory acts of one constable against another. Like the EAT, I reach that conclusion with considerable regret, recognising, as I do, that it leaves police officers less protected against racial and, probably, sexual discrimination than other workers. We are told by Mrs Cox that, although Mrs Liversidge's second originating application has not been struck out, there are few, if any, allegations of discriminatory acts committed by the Chief Constable himself, and the proceedings may not bring Mrs Liversidge any relief. But I take some comfort from the amendments effected by the 2000 Act to the 1976 Act, which is, as the preamble states, an Act to extend further the application of the 1976 Act to the police. Mrs Cox submitted that the 2000 Act was intended to deal with the problem which the Farah decision exposed, relating to Part III of the Act. But plainly the new provisions go further. In section 76A(3) for the purposes of section 32, the holding of a relevant police office (which includes the office of constable) held as a member of a police force shall be treated as employment by the chief officer of police, and anything done by the constable in the performance of his functions will be treated as done in the course of that employment. Those new deeming provisions would have been unnecessary if Mrs Cox's submissions had been correct. No doubt consideration will now have to be given by Ministers as to whether it is necessary to enact similar amending provisions for the purposes of the 1975 Act.
77. I, for my part, would dismiss this appeal.
78. LORD JUSTICE JONATHAN PARKER: I agree that this appeal should be dismissed.
79. Like my Lord, I find it impossible to construe section 16(1)(a) of the 1976 Act as including acts done by someone other than the chief officer of police. To my mind, the expression "any act done by him" in the subsection is simply not capable, as a matter of construction, of including an act not done by him. Mrs Cox QC submitted that acts "done by him" for the purposes of section 16(1)(a) include acts "deemed to be done by him" pursuant to section 32(1). I am unable to accept that submission.
80. In the first place, section 32(1) pre-supposes the existence of an employment relationship which, as is well settled and as section 16 itself recognises, does not exist as between the chief officer of police and police constables under his control.
81. Second, if one were to construe "done" in section 16(1) as including "deemed to be done", one would be left with the question whether a particular act by a police constable fell to be treated as the act of the chief officer of police under section 16(1)(a) or of the police authority under section 16(1)(b). The Act itself gives no guidance at all as to how that question is to be answered. In my judgment the absence of any such guidance reinforces the view that the expression "done by him" in the subsection means exactly what it says.
82. Third, a comparison of section 16(1) with section 54(1) demonstrates, to my mind, that where the draftsman of the 1976 Act wished to include acts deemed or treated to be done by a person in addition to acts actually done by that person, he was capable of doing so in clear terms. Nor can I accept Mrs Cox QC's submissions based upon section 75 subsections (1) and (2). Section 75(3) provides that subsections (1) and (2) of the section "have effect subject to section 16". Primacy is thereby given to section 16, and the effect of section 75 subsections (1) and (2) is limited accordingly. Thus the argument focuses, once again, on section 16(1), and I have already expressed my conclusions as to the true meaning of that subsection.
83. In any event, I agree with my Lord, for the reasons he has given, that a constable is not the holder of a statutory office but rather of an office at common law wherein he exercises original, as opposed to delegated, authority. Moreover, even if, as I will assume for this purpose, the office of a chief constable is a statutory office, I would find difficulty in seeing how it could be said that service by a constable is service "for the purposes of" the Chief Constable within the meaning of section 75(2)(b).
84. For those reasons, which merely echo those of my Lord, I too would dismiss this appeal.
85. LORD JUSTICE LONGMORE: Miss Cox invites us to give the Race Relations Act 1976 a purposive construction. That invitation, buttressed as it is by reference to paragraph 2 of Lord Bingham of Cornhill's speech in Anyanwu v Southbank Student Union [2001] I WLR 638 and the dicta in the Court of Appeal cases there cited, is an invitation which, for my part, I readily accept. The difficulty lies not so much in ascertaining the purpose of the Act as a whole, but in ascertaining the purpose of the sections of the Act which are relevant for the purposes of this appeal.
86. Section 4(2)(c) of the 1976 Act is contained in Part II of the Act relating to "discrimination in the employment field", and provides that it is unlawful for a person, in the case of a person employed by him, to discriminate against that employee by dismissing him or subjecting him to any other detriment. Section 32(1) is contained in Part IV of the Act relating to "other unlawful acts", and provides that "anything done by a person the course of his employment shall be treated as done by his employer as well as by him whether or not it was done with the employer's knowledge or approval". The purpose of these provisions is self-evident from their terms: it is that the employer must, subject to the other provisions of the Act, accept responsibility for discrimination in the work place.
87. The problem in the present case is that the appellant is a police constable, and, as Parliament was very well aware, a police constable is not an employee. He or she has no employer and the phrase "in the course of his employment", as used in section 32(1) of the Act, has no application to the performance of a police constable's duties. That is because a police constable is the holder of a public office and has been recognised as such for centuries: see Attorney General for New South Wales v Perpetual Trustee [1955] AC 457 and Sheikh v Chief Constable of Greater Manchester [1990] 1 QB 637.
88. This problem was addressed by Parliament directly in the Race Relations Act 1968, whose provisions were rather more limited than those in the 1976 Act. There was, in particular, no equivalent of a provision in the 1976 Act declaring it to be unlawful to discriminate against an employee "by subjecting him to any other detriment". Nevertheless, section 27(4) provided:

"For the purpose of this Act the office of constable shall be treated as if it were employment and a constable shall be treated as if he were employed by the authority by whom he is appointed..."

89. Section 13(1) of the 1968 Act was in virtually the same terms as section 32 of the 1976 Act, and it is to my mind clear, despite a tentative argument by the respondent to the contrary, that the police were subject to the provisions of the 1968 Act in relation to discriminatory Acts made unlawful by that Act. When, however, Parliament returned to the matter and extended the discriminatory acts which it made unlawful, it legislated in different terms in relation to the police. The provision is section 16 of the 1976 Act. In the first place the provision is enacted only for the purpose of Part II of the Act viz. discrimination in the employment field. Thus, section 32 of the Act, contained as it is in Part IV of the Act, is inapplicable to the police. That, to my mind, is the critical and insuperable difficulty which prevents Miss Liversidge bringing any claim against the Chief Constable of Bedfordshire in the present case in relation to the acts which the actual discriminator committed. Second, the wording of section 16(1) is in these terms:

"For the purposes of this Part, the holding of the office of constable shall be treated as employment-

(a)by the chief officer of police as respects any act done by him in relation to a constable or that office;

(b)by the police authority as respects any act done by them in relation to a constable or that office."

90. On any natural reading of these words, a police constable is treated as having an employer to the extent that the chief officer of police or the police authority does acts in relation to that police constable. It would not be a natural reading of the words to say that a police constable is to be treated as having an employer to any further extent.
91. Miss Cox seeks to overcome this difficulty by

(1)pointing out that the statute does not, as it could have done, use the word "only" after the words "police" and "authority" in sub-sub-sections (a) and (b);

(2) reminding us that the purpose of the legislation as a whole was to remedy the very great evil of racial discrimination in general; and

(3)inviting us to read the words "done by him" and "done by them" as respectively meaning "done or deemed to be done by him" and "done or deemed to be done by them".

92. For my part, I would feel able to achieve that by a process of purposive construction if section 16 were to have been enacted for the purposes of Part IV as much as of Part II. I might well be able so to construe section 16 if it was otherwise made clear that section 32 was in terms to apply to the police. It would then be tolerably plain that Parliament did have the purpose of making chief constables, or, as the case might be, police authorities, responsible for the acts of their subordinates. As it is, Parliament, plainly as it seems to me, did not have that purpose in 1976.
93. I would only add that, while I am satisfied that Parliament's purpose was that chief constables and police authorities should not be responsible for the acts of their subordinates in relation to discriminatory acts, I am surprised that, and indeed somewhat baffled why, Parliament should have had that purpose in 1976. We have been told that the relevant provisions of the 1976 Act were first adopted in the Sex Discrimination Act 1975 and then transposed more or less word for word into the Race Relations Act 1976. That only then transposes any question as to Parliament's purpose to an enquiry into the reason for enacting the provisions in relation to the police in the Sex Discrimination Act 1975. I can only assume that Parliament wished to tread warily in what was new legislation in a comparatively controversial area. Any further speculation is inappropriate and, in any event, impossible.
94. For these reasons and the reasons given by my Lords in relation to section 75, I would dismiss this appeal.
Order: Appeal dismissed with costs subject to detailed assessment if not agreed. Permission to appeal to the House of Lords refused.