England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
LANGSTAFF J

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/01/2016

LAWS LJ:

INTRODUCTION AND FACTS

1. 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.
2. 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

3. 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

4. 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.
5. 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

6. 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."

7. 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 arrived at. That falls within the scope of judicial proceedings immunity."

And so the decision of the ET was upheld by the EAT.

HEATH v COMMISSIONER [2005] ICR 329

8. In this court the primary argument of Ms Monaghan QC for the appellant was that Heath is inconsistent with Lake; we are free to follow Lake; we should do so, and if we do, the appeal should be concluded in her client's favour. So we must examine what each of these cases decides: first, Heath.
9. The claimant in Heath was a civilian employee of the Metropolitan Police who made a complaint of sexual assault by a police inspector at her place of work. A disciplinary Panel was convened under the Police (Discipline) Regulations 1985, consisting of three male commanders in the Metropolitan Police. A hearing took place on 13 March 2001. The claimant gave evidence and responded to questions by a male advocate instructed to prosecute the charges. She was cross-examined by a male counsel, instructed on behalf of the Inspector. The Inspector also gave evidence. On 5 June 2001 the claimant issued proceedings before the Employment Tribunal alleging sexual discrimination by members of the Panel. As Auld LJ put it in this court (paragraph 5), "[s]he claimed: 1) that she had felt intimidated because the membership of the Board was entirely male; 2) that her union representative, a woman, had to plead with the Board to allow her to sit at the back of the hearing room so as to give her female support; and 3) that the Inspector's male barrister, in asking her in cross-examination to demonstrate (while she was in close proximity to the Inspector concerned) how the Inspector had sexually assaulted her, humiliated her by asking her to open her jacket and squeeze her right breast with her left hand - without any objection from the Board members."
10. In a reserved decision the ET held that the police disciplinary hearing on 13^th March 2001 was a judicial proceeding in respect of which members of the Panel had an absolute immunity in respect of complaints of unlawful sex discrimination. The EAT agreed.
11. In this court there was a submission that the absolute immunity rule applied only to defamatory statements made in judicial proceedings and did not, therefore, extend to acts of unlawful discrimination. That was dismissed by Auld LJ at paragraph 17; Neuberger LJ as he then was and Holman J agreed. Auld LJ proceeded to discuss what was "the nature of the exercise in determining whether a body is to be regarded as 'judicial' for the purpose of giving absolute immunity to those involved in its proceedings" (paragraph 21). Along with other authority he cited Trapp v. Mackie [1979] 1 WLR 377, in which "Lord Diplock… identified four aspects for consideration: 1) whether the tribunal is 'recognised by law', 2) whether the issue is 'akin to' that of a civil or criminal issue in the courts; 3) whether its procedures are akin to those in civil or criminal courts; and 4) whether the result of its procedures lead to a binding determination of the civil rights of a party or parties" (paragraph 22); however, as Lord Diplock said (Trapp, 379), "no single touchstone emerges from the cases". Auld LJ noted (paragraph 23) that a similar approach is to be found in the judgment of Dickson J giving the judgment of the Supreme Court of Canada in Minister of National Revenue v Coopers & Lybrand [1979] 1 SCR 495 at 504.
12. Auld LJ proceeded to examine in detail the application of Lord Diplock's four considerations to the jurisdiction of the police disciplinary Panel. At paragraph 45 he expressed his conclusion thus:

"In my view, keeping Lord Diplock's and Dickson J's dicta well in mind, that this is not a technical exercise, but one of overall impression taking into account all the circumstances however categorised, the Employment Tribunal and the Employment Appeal Tribunal were not only entitled, but well-justified in finding that the Board, in its consideration of Miss Heath's allegations against the Inspector was a judicial body acting judicially. The latter, at paragraph 25 of its judgment (see paragraph 8 above) said by way of conclusion under this ground all that needed to be said, namely that 'the essential features of the disciplinary hearing rendered it closely analogous to a judicial proceeding before a court of justice'."

Neuberger LJ and Holman J agreed save that Neuberger LJ considered that the claim relating to the Panel's all-male constitution was directed against the Commissioner rather than the Panel; nothing turns on that for the purpose of the present case.

13. Auld LJ confronted and dismissed other arguments deployed on behalf of the claimant: (1) that "the underlying public policy reason for the absolute immunity rule does not outweigh the countervailing public interest in preventing any act of unlawful sex, or other, discrimination in the work-place" (paragraphs 47-56); (2)…") that application of the absolute immunity rule violated the claimant's rights guaranteed by Articles 6 and 8 of the European Convention on Human Rights (paragraphs 58-79); and (3) that Article 5 of the Equal Treatment Directive (EC Council Directive 76/207), read with Article 6, required the common law rule of absolute immunity to yield to the right granted by the 1975 Act to bring a claim before an Employment Tribunal for unlawful sex discrimination (paragraphs 80-97). Neuberger LJ and Holman J added no reasoning of their own on these points.
14. I will consider the import of the decision in Heath after addressing Lake, to which I now turn.

LAKE v BRITISH TRANSPORT POLICE [2007] ICR 1293

15. Lake was a "whistleblowing" case. The claimant was a constable in the British Transport Police. Disciplinary charges were brought against him, including allegations that he had made false accusations against a Sergeant Haggart and that he had incited another officer to make a false statement alleging unlawful conduct by Sergeant Haggart. The course of the disciplinary process was described by Pill LJ in this court as follows:

"6. In April 2005, the charges were heard at a disciplinary hearing before the Police Disciplinary Board. The Board found the appellant guilty of a total of five charges and directed that he be dismissed from the force. That was a sanction the panel conducting the hearing was entitled to impose (Regulation 35 of 2004 Regulations). The appellant exercised his right (Regulation 40) to request the Chief Officer of the Force to review the finding and the sanction imposed. On 30 June 2005, the Chief Constable allowed the appeal on one charge but dismissed it on the remainder and upheld the sanction of dismissal. On 22 July 2005, the appellant submitted his claim to the employment tribunal.

7. There was a further appeal. That was from the decision of the Chief Constable to the Police Appeal Tribunal, under Section 85 of the Police Act 1996. In a determination dated 17 May 2006, that is after the decision of the employment tribunal, that Tribunal allowed the appeal against the finding of guilt on one charge but dismissed the appeal in relation to three other charges. The appeal against the sanction of dismissal failed."

16. The claim in the ET was brought against the Chief Constable on the ground that the claimant had been unfairly dismissed because the reason for his dismissal was that he had made a "protected disclosure" (s.103A of the Employment Rights Act 1996): that is, he was a whistleblower. It was argued for the police respondent that "… the claimant was dismissed by the Police Disciplinary Board and that following the decision of the Court of Appeal in Heath that board was fulfilling a quasi-judicial function and, as a consequence, its proceedings and its decision are immune from suit". The ET agreed. So did the EAT which, as Pill LJ observed (paragraph 13), "considered at length the decision of this court in Heath".
17. Pill LJ concluded:

"29. I would allow the appeal and strike out the words in paragraph 2 of the employment tribunal's order following the pre-hearing review:

'It is, however, directed that the proceedings before the Police Disciplinary Board and the decision of the Board cannot form the basis of that claim [the Section 103A claim], those proceedings and that decision being immune from suit.'

30. If that paragraph does mean that the employment tribunal could not in law reach a decision different from that reached by the Board, or that it could not consider evidence contrary to that decision, it was wrong. Of course, if an attempt were to be made to call as a witness the Chairman of the panel constituting the Board to justify or explain his decision, or to impugn remarks he made in the course of proceedings, the Chairman would be protected by the immunity for his actions which has long been established. This is not a case in which the manner in which the Board has conducted proceedings has been challenged as biased or unfair or in itself giving rise to a claim. The challenge is that they reached the wrong decision and that the employment tribunal has jurisdiction to hear and consider evidence and to make its own decision as to whether a Section 103A case has been established. In my view, it has that jurisdiction…"

18. It is however clear that the order proposed by Pill LJ, and indeed the basis for allowing the appeal, was (so far as relevant to the present case) simply to leave no doubt that the claimant was entitled to pursue his s.103A claim against the Chief Constable, unconstrained from the adverse findings of fact made by the disciplinary Panel. As Pill LJ had explained earlier, the Chief Constable had reviewed the Panel's findings and decided to uphold the dismissal. At paragraph 25 he said:

"It was not immediately apparent what the appellant had to gain from an appeal when it had been conceded that the detriment claim relating to the bringing of charges could proceed to a full hearing as could the challenge to the actions of the Chief Constable in confirming the decision to dismiss. That would appear to allow a consideration by the employment tribunal of the underlying facts. I accept, however, that the appellant was left in doubt (as a tribunal conducting the full hearing would probably also have been in doubt) about the effect of the employment tribunal's ruling on jurisdiction, particularly when it included a finding that the decision of the Police Disciplinary Board could not be attacked. The appellant acted reasonably in pursuing the appeal and the reasonableness of that conduct is confirmed by the respondents' persistence, in submissions to the Employment Appeal Tribunal, and in written submissions to this court, that immunity attaches to the decision of the Board."

At paragraph 34 Wall LJ as he then was said this:

"This is the second occasion in my experience in this court in which proceedings before the Employment Tribunal have been diverted from an examination on their merits into a time-consuming, expensive and ultimately sterile debate on a point of law which has no relevance to the facts."

19. Maurice Kay LJ agreed with both judgments. The case was remitted to the ET to consider the merits of the claim. On remission from this court the ET held on 28 February 2008 that the claimant had indeed been unfairly dismissed on the grounds alleged. At paragraph 1.3 they noted in terms that "the Chief Constable [sc. as opposed to the disciplinary Panel] was in effect the dismissing officer".

CONCLUSIONS

20. In my judgment Ms Monaghan's attempt to neutralise the authority of Heath by deploying the later decision in Lake is, with respect, entirely hopeless. Heath is extensively referred to by Pill LJ in Lake: paragraphs 11, 27, 28: see also the reasoning at paragraph 30, which I have set out. It is plain that the court in Lake proceeded on the premise that Heath was correctly decided. More important is the fact that there is anyway no arguable inconsistency between the two cases, given the extremely limited scope of the decision in Lake. It amounts to no more, so far as relevant, than that the Chief Constable as the effective dismissing officer was not bound by the findings of the Panel.
21. Another case, Singh v Reading Borough Council and Anor [2013] ICR 1158, has been referred to in the course of the proceedings. With respect I need not take time with it. At paragraph 34 my Lord Lewison LJ refers to Heath; its correctness is not questioned. In fact, as Langstaff J stated in the present case at paragraph 8 of his judgment, "[i]n Singh… the claim was not based on anything that the claimant might or might not say to the [ET], but on what had gone on outside the Tribunal, and in particular the means by which the Council procured the fellow employee to make the allegedly untrue statement".
22. In my judgment no recognised exception to the rule of stare decisis has effect to disapply the binding effect of this court's decision in Heath. As I have shown there is no inconsistency with Lake. There is no question of Heath's having been decided per incuriam. The court was plainly aware of all material statutory provisions. There was no failure to have regard to any relevant learning. Ms Monaghan made some reference to Christou v Haringey LBC [2013] ICR 1007 and Mattu v University Hospitals [2013] ICR 270, but it is clear that neither case can be read as having any impact on the decision in Heath. I do not think it necessary to describe the details.
23. Accordingly in my judgment Heath is binding upon us; and it cannot be distinguished from the present case.
24. If my Lords agree, that disposes of the appeal in the respondent's favour. 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.
25. Parliament, however, must have passed the Equality Act 2010 in the knowledge of the Heath judgment, and included no provision to remove the cloak of immunity from the disciplinary Panels. Moreover Auld LJ's judgment in Heath shows with respect that the court was well aware of the broader consideration of policy in the case, canvassed as they had been by counsel for the claimant. And it may be fruitful to give some thought to the terms of the Regulations under which such Panels are constituted; it is instructive that in Lake, as I have shown, the effective dismissing officer was the Chief Constable.
26. I would dismiss the appeal.

LEWISON LJ:

27. I agree.

CHRISTOPHER CLERKE LJ:

28. I also agree.