United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL ROSE (of Counsel) Instructed By: Bedfordshire County Council County Hall Cauldwell Street Bedford MK42 9AP
For the Respondent	MS IJEOMA OMAMBALA (of Counsel) Instructed By: Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


MR JUSTICE LINDSAY (PRESIDENT):

1. This appeal concerns the Employment Tribunal's failure to strike out a claim by the respondent, Mrs Liversidge, for whom Miss Omambala appears, against the appellant, the Chief Constable of Bedfordshire Police, who appears by Mr Rose. The claim was for racial discrimination. The claim plainly asserted that the Chief Constable was vicariously liable for the acts of his constables and whether that was so is the chief issue before us. Whether the claim contained an allegation of direct, primary or personal liability on the part of the Chief Constable is another issue which we shall have to deal with. An important factor to be kept in mind is that the material events, the IT1 and the judgment under appeal all ante-date the Race Relations (Amendment) Act 2000.

1. The factual background

2. On the 12th August 1999 Mrs Liversidge, a black police constable, presented an IT1 (605/99) to the Employment Tribunal at Bedford claiming against "Bedfordshire Police and P.C. Fitzgibbon" for racial discrimination. She said:-

"Between the 21-24.06.99 I have become aware in the course of my duty, I have been the subject of RACIAL ABUSE I have been described by my colleagues as (PM) standing for PORCH MONKEY a derogatory term for BLACK WOMEN from Southern America."

She said the matter was the subject of an internal police investigation. It is to be noticed that Mrs Liversidge does not claim herself to have heard this abuse, that the colleagues (plural) are not identified, that whereas she learned of the abuse whilst she was in the course of her duties, it was not said that the abuse from colleagues had been in the course of their duties, that there was no indication that the colleagues who referred to her as "PM" knew what it stood for or that it was abusive and that there was no explanation of why P.C. Fitzgibbon was singled out to be joined as the individual respondent. Whilst a date of Mrs Liversidge's first awareness of the use of the abusive term was given, no indication was given of when the term had in fact been used.

3. Unsurprisingly, the Employment Tribunal ordered Mrs Liversidge to give further particulars, which she did on the 1st October 1999. She wrote:-

"The applicant alleges that the second respondent, P.C. 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 the applicant. The applicant was not present when the second respondent used the term but became aware of its usage in the Station about the applicant by male members of her section when she was approached by Detective Sergeant Paisley at Dunstable Police Station on the 23rd June 1999. The applicant made further inquiries of colleagues to establish that P.C. Fitzgibbon had used the term about her."

Both respondents then denied that Mrs Liversidge had been the subject of the racial discrimination which she had alleged. They said that a thorough investigation concluded that there was no evidence that:-

"She had been referred to as a PM (Porch Monkey)."

The Bedfordshire Police also raised a defence within section 32 (3) of the 1976 Act.

4. On the 16th February 2000 Mrs Liversidge issued a second IT1 (353/2000), this time directed only against the Chief Constable of Bedfordshire. It was for "Race discrimination and/or victimisation pursuant to section 4 (2) and section 2 (1) (a) and (d) of the Race Relations Act 1976". By now she had solicitors acting for her. She asserted that the investigation by the police into her complaint had been inadequate. It appears from this second IT1 that by its date P.C. Fitzgibbon had raised counter-allegations against Mrs Liversidge for "sex harassment", which had led to the Chief Constable bringing disciplinary charges against Mrs Liversidge. This, she complained, represented sex discrimination and/or victimisation.
5. On the 15th March 2000 the Chief Constable denied the charges in the second IT1; both complaints, that of Mrs Liversidge against P.C. Fitzgibbon and the converse one Fitzgibbon against Liversidge had been taken seriously, he said, and had been properly investigated.
6. P.C. Fitzgibbon brought two sets of Employment Tribunal proceedings against the Chief Constable.
7. On the 10th April 2000 the Employment Tribunal combined Mrs Liversidge's two IT1s (605/99 and 353/2000), but only after saying that her:-

"....... complaint against Mr P.J. Fitzgibbon is dismissed upon withdrawal."

That was effected at a Tribunal consisting of the Chairman sitting alone. Mrs Liversidge was represented by Counsel, Miss Omambala. Mr Fitzgibbon was also represented by Counsel and the Chief Constable was represented by a solicitor. The "reasons and note of discussion" promulgated on the 13th April made no mention of the circumstances surrounding, nor any of the terms applicable to, Mrs Liversidge's withdrawal of her complaint against Mr Fitzgibbon nor of the consequential dismissal of the complaint by the Tribunal. Mr Fitzgibbon's IT1s were sent off to be heard by a different Tribunal. Witness statements were directed in the Liversidge cases.

8. In the course of her witness statements Mrs Liversidge says:-

"About the end of June 1999 I was approached by Det Sergeant Paisley who asked me if I had heard the term "Papa Mike". I had not heard of this and D.S. Paisley then told me that it was phonetic for "Porch Monkey" which is a derogatory name used by racists and aimed at female Negroes. He then told me a member of my section had used this term in relation to me but he did not name the officer."

She believed it had been P.C. Fitzgibbon that had used the term; she added:-

"As far as I am aware the term "Papa Mike" can only be used in a derogatory manner against female Negroes."

In another statement she says:-

"23rd June 1999.

58. On this date I was approached by Detective Sergeant Paisley who said he had been looking for me since Monday the 21st June 1999. He said "Have you heard the term "Papa Mike"?". I said "No". He said "It's two phonetic letters referring to the term "Porch Monkey". I want to make you aware that this is what male members of your section are referring to you as. A sergeant" (who I now know to be Sergeant Hunt) "has come to me in confidence, and has asked to me to speak to you about it"; he then described one of the persons responsible as being a very vocal and influential member of the section and then asked if there was also an officer who hails from South Africa on the section."

She added that the officer whom she suspected was P.C. Fitzgibbon.

9. On the 6th June 2000 Mrs Liversidge gave further particulars of her two cases against the Chief Constable, saying, of the "PM" allegation that:-

"The remark was made about the applicant by male members of her section at Dunstable Police Station, including P.C. Fitzgibbon. As far as the applicant is aware the remark was regularly used by members of her section at Dunstable to refer to her over a period of time. She is unable to particularise each and every occasion upon which this term was used about her."

We have been told that her section consists of some 10 persons of whom 7 are male. There has been no suggestion of Mrs Liversidge having become aware of the use of the "PM" term other than in the single conversation with Sergeant Paisley and her later confirmation of it. No-one but P.C. Fitzgibbon has been identified by name as having used or having been suspected of having used the "PM" or "Papa Mike" term and the full term "Porch Monkey" is not said have been used at all.

10. Although there seems to have been some uncertainty about the origin of the term ("Southern America", presumably meaning the Southern States of the USA) and although no evidence seems to have been led as to its meaning or of any general apprehension of its meaning, we are invited by both sides and are content to assume that both it and "PM" or "Papa Mike" were all abusive and known by their user or users to be abusive in the way suggested.
11. On the 13th June 2000 the two IT1s (605/99 and 353/2000) against Bedfordshire Police or (the terms seemed to be used indiscriminately) the Chief Constable of Bedfordshire Police, came on before a full Tribunal of three under the Chairmanship of Mr P. Robjant. Mr Rose, then as now acting for the Police, made what are described in the Decision as 4 applications. They were, firstly, that the claim against the police in 605/99, based on the alleged abuses by P.C. Fitzgibbon, should be struck out as res judicata following the dismissal upon withdrawal of the claims against that constable of the 13th April 2000. Secondly, that the rest of 605/99 (the parts not related to Fitzgibbon) should be struck for want of particularity; thirdly, that there should be an adjournment and, fourthly, that the victimisation claim in 353/2000 should be struck out.
12. On the 19th June 2000 the Tribunal's interlocutory orders and reasons were sent to the parties. The material parts of the Order were:-

"It is hereby ordered that:-

(1) The claims against P.C. Fitzgibbon, and the corresponding claim of vicarious liability for the acts of P.C. Fitzgibbon on the part of the first respondent, are res judicata by reason of the applicant's withdrawal of the claim against P.C. Fitzgibbon: that the remaining allegations in Case .... 605/99 may proceed.

(2) The respondents' application for the striking out of the entirety of application ..... 605/99 fails.

(3) The allegations of victimisation in application ..... 353/00 will proceed to hearing."

The hearings of such parts of the IT1s as survived were adjourned.

13. On the 29th June 2000 the Employment Appeal Tribunal received the Chief Constable's Notice of Appeal. Mrs Liversidge cross-appeals against the Tribunal's ruling (in its Reasons rather than in the Order itself) that Mrs Liversidge, at the adjourned substantive hearing, will not be able adduce any evidence as to the activity and conduct of P.C. Fitzgibbon or any allegations that there might have been as to the Chief Constable's vicarious responsibility for that conduct.
14. Before we turn to the more significant questions that arise, we pause to deal with some minor ones. First, we have not understood the appeal to touch the Employment Tribunal's decision that the allegations of victimisation in 353/2000 are to proceed to hearing, with no part of 353/2000 struck out. The Notice of Appeal (which speaks of "the Originating Application" and seeks only its striking out) does not appear to relate to any part of 353/2000 and nothing to do with that second IT1 is taken by us to be here in issue. Thus, without derogating from the generality of that last remark, we add (without our meaning to suggest that otherwise such evidence might have been relevant to the 353/2000 victimisation claims) that we have not taken the ruling that Mrs Liversidge cannot adduce evidence as to the conduct and activities of P.C. Fitzgibbon to operate to bar the introduction of such evidence by her in 353/2000. Further, we have been told that the appellant's reply to the cross-appeal was out of time; the Registrar extended time for its service to the 20th September 2000, the date it was received. We detect no error of law in the Registrar's decision and Mrs Liversidge's appeal against it is dismissed if, indeed, it was truly raised.
15. With that behind us we turn now to the questions that do arise on the appeal which, at their broadest, are these; did the Employment Tribunal err in law in relation to the conclusions that it gave as to (1) whether all or any (and, if so, which) parts of IT1 605/99 should be struck out under Employment Tribunal Rule 13 (2) (d) or for any other reason? (2) If not all of that first IT1 is struck out, can Mrs Liversidge at its substantive hearing adduce evidence as to P.C. Fitzgibbon's activity and conduct?
16. It is first convenient that we should look at the nature of the claims which are sought to be struck out.

2. The nature of the claim sought to be struck out

17. IT1 605/99 plainly is or includes a claim that the Police Respondent ("Bedfordshire Police" or "The Chief Constable of Bedfordshire Police", which latter we take to be the proper description) was, by means such as we shall examine below, liable to Mrs Liversidge in respect of the alleged abuse by P.C. Fitzgibbon and, if any others were involved, abuse by his colleagues at Dunstable Police Station. That such a claim is comprehended by the IT1 and is within its particulars is not disputed.
18. However, Miss Omambala asserts that, further or alternatively, there is a claim for direct or primary liability on the part of a Chief Constable under the principle of Burton & Rhule -v- DeVere Hotels [1996] IRLR 596 EAT (the "Bernard Manning" case). That case shows that liability can be extended where the abuser is not a servant or agent of the respondent such as to make the respondent vicariously liable for him but where the respondent can be said to have caused or permitted the abuse in circumstances in which he could control whether it happened or not - see paragraph 36. Such a claim - see para 38 -requires the Employment Tribunal to ask itself whether the event in question was something which was sufficiently under the control of the respondent that he could, by the application of relevant good practice, have prevented the harassment or have reduced the extent of it.
19. Whether there were facts available that could have led to a finding of liability of such a kind against the Chief Constable we do not attempt to answer but what we do say, as Mr Rose urges, is that nowhere in IT1 605/99 or the particulars thereof delivered on the 1st October 1999 or on the 6th June 2000 was anything said that suggested that any such case was being made against the Chief Constable. A minimum would have been some suggestion that the Chief Constable could have prevented the abuse or reduced its impact but that he had failed to do so. Nothing such was said notwithstanding that the Chief Constable had, as we have mentioned, raised a defence under section 32 (3), which could have prompted a reply that he had not taken any or sufficient steps to prevent the occurrence of the abuse complained of.
20. Mr Rose adds that no application for leave to amend by adding a DeVere claim had been made to the Employment Tribunal, let alone granted, but that, if it were to be added, consideration would need to be given as to whether it was out of time and, if so, whether an extension of time should be permitted. Mr Rose makes the point also that the claim is wholly unparticularised, existing, if at all, only in paragraph 5 (b), some four lines long, of Mrs Liversidge's cross-appeal.
21. In our view there is, as yet, no claim duly made 605/99 for a DeVere type of liability or for any other type of primary or direct liability against the Chief Constable. Now that Police Constable Fitzgibbon has settled with Mrs Liversidge, the remaining claim against the Chief Constable, the claim as to which we must decide whether or not there was error of law in relation to the decision not to strike it out, is and is only by way of what we will (for reasons we shall explain) call the Chief Constable's "constructive liability".
22. The striking out sought below was attempted under Employment Tribunal rule 13 (2) (d) but another possible route to a striking out has opened up, one of more general application.

3. Striking out other than under ET Rule 13 (2) (d); for want of jurisdiction

23. The question has arisen of whether, either at the 10th August 1999 (the presentation of the first IT1) or at any point in the period from then down to the promulgation of the Employment Tribunals decision on the 19th June 2000, the Chief Constable could properly have been made liable under section 59 the Race Relations Act 1976 for an act of racial discrimination perpetrated not by him but alleged to have been by one of his constables upon another of them. If he could not then it would be right to strike out 605/99 irrespective of Rule 13 (2) (d). With respect to abuses at and after the coming into force of the Race Relations (Amendment) Act 2000, as we shall explain, we have no doubt but that the answer to that question would be affirmative, but that amending Act did not come into force, as to its material provisions, until the 2nd April 2000. We must therefore look in some detail at section 16 in Part II of the 1976 Act, which makes special provision as to the Police.
24. This question, remarkably, was not raised at the Employment Tribunal but arose late and for the first time before us and was dealt with in three written submissions received by us only after the conclusion of the oral hearing, the last being received on the 5th July 2001. Mr Rose argues that the point is one of jurisdiction and that the Chief Constable should not be barred from seeking to rely on the argument before us. Miss Omambala does not assert that it is too late to raise the point. The point is exclusively one of statutory construction; this Appeal Tribunal is, we believe, in possession of all the material necessary to enable us to dispose of the matter fairly, without injustice to either party and without recourse to a further hearing below, to use the language cited in Jones -v- Governing Body of Burdett Coutts School [1998] IRLR 521 C.A., paras 19 and 20. If it is necessary for us to exercise a discretion in order to permit the question to be argued then we conclude that it would be right for us to entertain the question.
25. We shall first look at the language used in section 16 of the Race Relations Act 1976 and in other relevant sections of that Act, devoid, at this point in the argument, of any study of its legislative precursors or its descendants and devoid of authority.
26. Section 16, in Part II of the Act, provides, so far as material, as follows:-

"16 (1) 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."

The "him" in the phrase "any act done by him" in section 16 (1) (a) refers to the Chief Officer of Police just as "by them" in section 16 (1) (b) refers, albeit inelegantly, to the Police Authority. The fact that the constable's position is referred to as the holding of that office and that such holding shall be "treated as" employment reinforces the correctness, as a starting point, of a view that a constable is not, without particular contrary provision, an employee but is an office holder, a servant of the State holding an ancient office of profit under the Crown, see, e.g., Lewis -v- Cattle [1938] 2 K.B. 454 per Hewart C.J.. It is trite law that the Police are not "employed" in the usual legal sense of that word - Sheikh -v- Chief Constable [1989] ICR 373 at 376 C.A..

27. Miss Omambala submits that the distinction between an office holder and an employee is arcane but not only is that a view to which any one interested in, for example, judicial independence, would find it difficult to subscribe, it is a distinction which the 1976 Act obviously regarded as extant and material. The meaning of the language used in section 16 is that as between a constable and a Chief Officer of Police (a term defined within the section) the Chief Officer is to be treated, so far as concerns the Chief Officer's acts done in relation to a constable, as the constable's employer. However, there is nothing here to require or enable the Chief Officer to be so treated so far as concerns the acts of one constable against another or, indeed, against a member of the public. Had the legislature intended that for all purposes the Chief Officer was to be treated as the constable's employer nothing could have been easier; the word "as respects any acts done by him in relation to a constable or that office" could have been omitted. They were not, and they appear to limit the deeming of employment, and hence of the employer/employee relationship, as we have described. The word "employment", as defined in section 78 of the Act, does nothing to extend its meaning to include the holding of an office and, had it done so, section 16 could not have been framed as it was. Moreover, section 75 (5) of the Act shows that where the draftsman recognised a need for special and limited purposes to extend the meaning of "employment" (here just for the purposes of that subsection) he knew how to do so. Section 75 (2) (b) would seem not to assist Mrs Liversidge as it does not extend section 16 - see section 75 (3).
28. If, then, section 16 does not itself make the Chief Officer liable for the acts of one Police constable against another, does section 32 or section 33 assist to that end?
29. Section 32 (1), in Part IV of the Act, provides:-

"32 (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."

It is to be noted, firstly, that the section does not simply provide, as it might have done, for the Employer to be liable for the acts of the Employee (vicarious liability); rather it provides that the Employer shall be deemed himself also to have done the Employee's act (a form of liability we shall for convenience call "Constructive Liability"). Secondly, in the section the words "in the course of his employment" pre-suppose employment. Nothing extends the meaning to include "anything done in the course of his function as a holder of office". Nor is it possible here to regard the Chief Constable as having himself done the acts of another constable by reason of being his or her employer by reason of the deeming provision of section 16 as the deeming provision of section 16 is for the purposes of Part II of the Act but section 32 is in Part IV.

30. Section 32 (2) deals with agents doing acts with authority; that has not been suggested as possibly including the activity of P.C. Fitzgibbon or his colleagues in this case.
31. Section 33 (1) provides for the case where one knowingly aids another; again, it has not been suggested that that could fit the activity of the Chief Constable in relation to the acts alleged to have been done by P.C. Fitzgibbon or any colleagues of his. Section 33 (2) provides:-

"(2) For the purposes of sub-section (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."

However, a constable is, with respect to his acts against another constable, neither (as we have seen) the employee, nor has it been argued that he is capable here of being agent, of the Chief Constable acting with that Chief Officer's authority.

32. Thus Section 32 does not carry liability to the Chief Officer as employer or principal for want of the employer/employee relationship (or the corresponding relationship between authorised agent and principal) which that section requires. Accordingly, looking only at the statutory language of section 16 of 1976 Act, we would conclude, reluctantly, that Mrs Liversidge, had no right to proceed against the Chief Constable as she did in 605/99. We say "reluctantly" because it is a conclusion that seems to suggest that there is a sizeable hole in the protection which the Act might have been expected to provide.
33. Does the legislative history and subsequent dealings with the Race Relations Act 1976 suggest otherwise? The Race Relations Act 1968 expressly provided, at section 27 (4), that for the purposes of the Act "The office of constable shall be treated as if it were employment" and it described by whom a constable was to be treated "as if he were employed". For some reason that wide formula was departed from in the 1976 Act. Although the parties have provided us with some "Pepper -v- Hart" material, none deals with the framing of the 1976 Act. We have therefore been unable to see what was the reason for the change but, it not being an omission but an addition, one would not think it to have been accidental but deliberate. The 1975 Sex Discrimination Act at its section 17 provided in corresponding terms to section 16 of the 1976 Act. There would thus seem to be nothing in such of the history lying behind the 1976 Act which has been drawn to our attention that assists Mrs Liversidge.
34. The subsequent dealings with section 16, as we shall explain, serve only to emphasise that section 16 was not a provision that makes a Chief Officer of Police widely responsible for the acts of his constables.
35. One of the objects of the recent Race Relations (Amendment) Bill was, as appears from the debate on its second reading in the House of Lords, to "make Chief Officers of Police vicariously liable for acts of racial discrimination by Police Officers" - per Lord Bassam of Brighton - who added:-

"The Bill therefore tackles gaps in coverage which were left when the 1976 Act was introduced, or which have been found through the case law."

Later Lord Bassam added:-

"Police Officers are office holders, not employees. Under the Act as it stands, special provision is made to enable them to be regarded as employees in respect of their own treatment, but no provision is made in respect of the exercise of their police functions. Although section 88 of the Police Act 1996 and section 39 of the Police (Scotland) Act 1967 make general provision for the vicarious liability of a Chief Officer of Police, a construction of the Race Relations Act means that this does not apply to acts that are unlawful under the Race Relations Act. So there is a clear anomaly here that needs to be addressed in order to bring the Police in line with other organisations and with its own general practice. Both the Stephen Lawrence Report and the Commission for Racial Equality have made recommendations to this effect. Clause 3 of the Bill therefore provides for Chief Officers of Police to be made vicariously liable for acts of discrimination carried out by officers under their control."

36. The Bill was brought from the House of Lords to the House of Commons on the 3rd February 2000. Explanatory notes were prepared by the Home Office in order to assist readers of the Bill and to help informed debate upon it. The explanatory notes are entirely consistent with the observations which Lord Bassam had made as to Chief Officers of Police not being vicariously liable for acts of racial discrimination by Police Officers. Commenting on Clause 3 the notes said:-

"Clause 3 inserts new section 76 (a) and 76 (b) into the Act. This provision makes the Police Authority liable for acts done by it to a constable. It also makes Chief Officers of Police, or a Chief Constable of a Police Force in Scotland, liable for the acts done by him to a constable and it makes the Chief Officer liable for the acts of constables under his direction and control in relation to claims brought under the Act."

The notes point out that the office of constable does not fall within the definition of "employment" in the Race Relations Act and also notes that section 53 (1) of the Race Relations Act excludes the applicability of section 88 of the Police Act 1996. It comments:-

"There is therefore no provision in law for Chief Officers to be held vicariously liable for the racially discriminatory actions of an individual officer."

The amendment which the Bill was proposing was described as:-

"Therefore [aligning] the position of police officers with that of employees, thereby making Chief Officers of Police liable for the unlawful acts by an individual police officer, and provides that anything done by an officer in the performance or purported performance of his functions shall be treated as done in the course of his employment."

37. On the 9th March 2000 the Race Relations (Amendment) Bill was read a second time in the House of Commons where Mr Jack Straw gave as one of its purposes:-

"To make Chief Officers of Police vicariously liable for acts of racial discrimination by Police Officers."

A little later in the debate he said:

"In the existing Act, employers are held vicariously liable for the discriminatory acts of their employees, but Police Officers are office holders, not employees. Although the Police Act 1996 and the equivalent Act in Scotland makes general provision for the vicarious liability of a Chief Officer of Police, the Courts' construction of the Race Relations Act has meant that that general provision does not apply to the Act. That anomaly needs to be addressed, to bring the Police into line both with other organisations and with its own general practice."

38. In the House of Commons on the 11th April 2000 in the debate on the Race Relations (Amendment) Bill the Parliamentary Under Secretary of State for the Home Department, Mr Mike O'Brien, said, inter alia:-

"However, Police Officers are office holders not employees and Chief Officers of Police are not vicariously liable for the discriminatory acts of their officers. The Bill tackles that anomaly, as was recommended by the Stephen Lawrence Inquiry Report, by providing that Chief Officers of Police are made vicariously liable for acts of discrimination carried by officers under their direction and control."

39. It is against that background of discussion that the Race Relations (Amendment) Act 2000 came to be enacted. It adds to the 1976 Act a section 76A which provides, so far as immediately relevant:-

"76 (A) (3) For the purposes of section 32 -

(a) The holding of a relevant police office shall be treated as employment by the Chief Officer of Police (and as not being employment by any other person); and

(b) anything done by a person holding such an office in the performance, or purported performance, of his functions shall be treated as done in the course of that employment."

Section 16 of the 1976 Act was totally repealed. Putting it at its lowest, this summary of the history of legislative dealings with the position of the police in relation to race relations does nothing to persuade us that section 16 in its form either at the 10th August 1999 (when the IT1 was issued) or at any time down to the promulgation of the Employment Tribunal's decision on the 19th June 2000 was other than such as not to enable the Chief Constable of Bedfordshire to be made liable under the 1976 Act for an act of racial discrimination perpetrated by one of his constables upon another. The repeal of section 16 of the 1976 Act and the addition of section 76 (A) into the Act took effect on the 2nd April 2001 - the Race Relations (Amendment) Act 2000 (Commencement) Order 2001, paragraph 2. No one has argued for its having any retrospective effect.

40. Before we look at authorities in the area we must first look at statutory provisions outside the 1976 Act.
41. Section 88 (1) of the Police Act 1996 provides:-

"The Chief Officer of Police for any 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 their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor."

That makes the Chief Officer liable for torts committed by his constables and provides that "accordingly" he is to treated as a joint tortfeasor. The word "accordingly" suggests that his treatment as a joint tortfeasor is a state that follows from the liability created in the first part of the section. It is not a provision that requires the Chief Officer to be treated as if he himself had committed the act done by his constable but rather that he is to be liable jointly for it. When one contrasts that with section 54 of the 1976 Act an important distinction emerges, between liability for the act of another, true vicarious liability, and what we have called "Constructive Liability", where one person is treated as having committed the act of another. Section 54 of the 1976 Act provides (with our emphasis):-

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

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2; 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]."

Section 53 (1) provides:-

"Except as provided by this 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."

42. Accordingly, unless a complaint under the Act falls within section 54 (1) it is not such as can be presented to the Employment Tribunal. But, in 605/99, the Chief Constable of Bedfordshire is not himself said to have committed any act of discrimination against Mrs Liversidge and, whilst he may be liable for the act of another constable under section 88 (1) of the Police Act, he is not "by virtue of section 32 or 33 to be treated as having committed such an act". Thus in the absence, as we have held, of her raising any case of direct or primary liability on the part of the Chief Constable, a complainant such as Mrs Liversidge cannot complain in the Employment Tribunal against the Chief constable because she falls outside section 54 (1) (a) and (b) and yet would be unable to complain elsewhere by reason of section 53 (1). It was, we presume, to this double anomaly and to its repair that the Home Office Ministers and the draftsman of the Home Office explanatory notes were referring in the passages which we have cited, they, perhaps, having particularly in mind the decision of the Court of Appeal in Farah (infra).
43. So far, then, we remain of the conclusion to which the language of section 16 itself had led us. But are there binding authorities that should lead us to some contrary conclusion?
44. Taking in chronological order the authorities brought to our attention, the first is Sheikh -v- Chief Constable of Greater Manchester Police [1989] ICR 373 C.A.. It concerned the applicability of section 16 of the Race Relations Act to a Special Constable. Mr Sheikh, a Special Constable, had been dismissed from that office. He claimed the dismissal was on racial grounds. The Industrial Tribunal and the Employment Appeal Tribunal rejected his claim on the ground of jurisdiction; he had never been employed. The Court of Appeal relied on section 16 to enable Mr Sheikh to be treated as if employed and remitted the case to the Industrial Tribunal to be heard on its merits. There, as here, the section 16 argument emerged only late. However, there it would seem the case against the Chief Constable asserted his direct and primary liability; it was the Chief Constable who engaged Special Constables - p. 377 e-f - and Special Constables were liable to dismissal by Chief Constables - p. 380 a-b and d-e. Mr Sheikh, unlike Mrs Liversidge, was thus complaining of an act done by the Chief Constable himself in relation to Mr Sheikh, a constable (albeit only a "Special" one). Section 16 was thus available to Mr Sheikh but the case does not assist Mrs Liversidge as she is not relying on any act done by the Chief Constable himself and therefore she has to depend, as Mr Sheikh did not, on vicarious or constructive liability.
45. Miss Omambala seeks to rely on Jones -v- Tower Boot Co. Ltd. [1997] ICR 254 C.A. but whereas that case, ahead of the more recent extension by the House of Lords of the approach of the common law to "in the course of employment", encourages a plain man's interpretation of the phrase - p. 265 e, it does nothing to suggest that there need not be "employment" at all or an "employer" for a case to fall within section 32. Mr Jones was an employee; the Boot Company his employer.
46. In Waters -v- Metropolitan Police [1997] ICR 1073 C.A.. Miss Waters, a policewoman, brought both common law and Sex Discrimination Act claims in different proceedings. In the Court of Appeal appeals in each were heard together. Section 17 of the Sex Discrimination Act (that Act's equivalent of section 16 of the Race Relations Act) played virtually no part at all. Evans L.J., dealing principally with the common law claims, mentions in passing that section 17 makes the relationship between a police constable and his or her Chief Officer of Police equivalent to that of employer and employee, an observation which is acceptable as a general comment, as it was intended to be, but which is unsafe otherwise as it neglects the words "For the purposes of this Part" in section 17 and section 16, which show that it is not for all purposes that the equivalency is created. Indeed, Evans L.J. at p. 1085 b-c, as we read him, says that it is only "In certain respects" in which the equivalency applies. There is nothing there that assists Mrs Liversidge. Further, when the Sex Discrimination Act claim was dealt with, mainly by Waite L.J., section 17 was not mentioned at all; the activity, of another constable, of which Miss Waters complained was so far outside the course of "employment" that, however liberally one construed "employment", it remained outside the course of it and hence there was no route by which the Chief Constable could have become liable for that activity - p. 1095 g - 1096 a.
47. Farah -v- Commissioner of Police of the Metropolis [1998] QB 65 C.A., although heard in 1996, was reported, at any rate in the Law Reports, only in 1998. By the time the case reached the Court of Appeal it had become common ground that there was no employer/employee relationship between a Chief Constable or Commissioner and his constables - p. 72. Hutchison L.J. emphasised how restrictive section 53 of the RRA was - p. 80. Contrary to his wishes, he held that there was no valid ground for holding that a Chief Constable was liable for acts of racial discrimination committed by his constables - p. 83 b-d; see also Otton L.J. p.85 b-c and Peter Gibson L.J. at p. 86. Although Farah was concerned with civil proceedings rather than proceedings before any Tribunal and with allegations of breaches of Part III of the RRA (section 20), its conclusions are widely expressed. There is nothing in it that suggests that section 16 in Part II of the RRA was available to create vicarious liability under section 20 in Part III and to that extent it supports an argument that section 16 of the RRA is not available, either, for the purposes of section 32 in Part IV of the RRA or, indeed, for any purposes outside those specified, those of Part II.
48. Chief Constable of Lincolnshire -v- Stubbs and Ors [1999] ICR 547 EAT was chiefly an internecine contest as to which Chief Constable was to be regarded as liable for the activity of Det. Sgt Walker whilst he was seconded to the regional crime squad. He had discriminated against his female colleague, Det. Constable Stubbs. The difficulties consequent upon constables not being employees and, in turn, not doing acts in the course of employment and the only limited way in which that position was altered by section 17 (1) of the SDA (the equivalent of section 16 of the RRA) were not addressed. It seems it was tacitly assumed that for the purposes of section 41 of the SDA (the equivalent of section 32 RRA) a Chief Constable was an employer for all purposes, without noticing that the opening words of section 17 (1) applied the provision for the purposes of Part II of the SDA whereas section 41 was in Part IV.
49. AM -v- WC [1999] ICR 1218 EAT did not directly concern the vicarious or constructive liability of a Chief Constable for the discriminatory acts (sex or race) of one constable against another but rather the liability of one constable for his own acts against a fellow constable. However, the EAT appears there to have accepted that a Chief Constable could be vicariously liable for the discriminatory acts of one constable under section 63 (1) (b) of the SDA (section 54 (1) (b) RRA) as made as if the acts of the employer of the constable under section 41 of the SDA (section 32 RDA).
50. Three points require mention. Firstly, the difficulties introduced by the words "For the purposes of this Part" (i.e. Part II) in section 17 of the SDA were overcome, so as to enable section 17 to affect the meaning of section 41 in Part IV, by acceptance of the engaging argument from Counsel that section 17 did not say "For the purposes only of this Part". Leaving aside what the function of the words "For the purposes of this Part" was if it was not to mean that, there is in the Act no licence to read the words "employer" or "in the course of his employment" in section 41 of the SDA (section 32 RRA) in any sense other than as in section 78 of the Act (which applies to the whole Act unless the context otherwise requires) or in any other way such as might include an office-holder or acts done in the course of function as an office-holder unless one can utilise section 17. But if section 17 were so to be utilised one would then have used it for a purpose outside the purposes, those of Part II, for which it was expressly enacted to be usable and in a manner for which no statutory or other warrant is provided.
51. Secondly, although Farah supra was cited in argument it was unmentioned in the judgment.
52. Thirdly, the EAT in AM -v- WC was plainly appalled at the gap in the legislation which would exist if it held other than it did. We have had the advantage, which the EAT could not then have had, of seeing the amendments made by the Race Relations (Amendment) Act 2000. So far as concerns racial discrimination, the gap feared in AM -v- WC has been plugged by Parliament. It is, at lowest, arguable that if AM -v- WC were right the 2000 Act would either not have been framed as it was or may have been totally unnecessary. At all events, the case does not bind us and we do not propose to follow it.
53. Accordingly there is no authority binding us to depart from our earlier view that Mrs Liversidge had no right in law to claim against the Chief Constable as she did in her IT1 605/99. Such parts of that IT1 as were against P.C. Fitzgibbon had been dismissed on withdrawal and, (without our needing to consider the effect of what may have been a settlement with one of two joint tortfeasors), for the reasons we have given the remainder, a claim for vicarious or constructive liability on the part of the Chief Constable, is not open to Mrs Liversidge. For reasons which were not argued at all before the Employment Tribunal, that Tribunal, though no fault of its own, erred in law by NOT striking out the whole of 605/99.
54. Given that our conclusion on the section 16 argument determines the appeal we shall, we hope, be forgiven for dealing only briefly with what our conclusions on some other points would have been had we needed to reach them.
55. If our conclusion on the section 16 argument were to be wrong we would have upheld the Tribunal in not striking out the parts of 605/99 which claimed against the Chief Constable. We would not have seen the case as falling within Rule 13 (2) (e). Whilst Mrs Liversidge's complaint, even after the giving of particulars, remains lacking in detail, in particular as to dates, times, places and identities, there is no reason to think there has been any tactical withholding of information with a view to a later surprise or embarrassment. It is of the nature of the form of discrimination complained of (racial abuse of her behind her back) that details are likely to be difficult to supply. The Tribunal accepted that she had done the best she could. Given her failure to supply particulars she would in practice be barred from putting particular examples to particular witnesses; cross-examination on the lines of "Did you not, on the 13th June at Dunstable Police Station say to Constable G. that I was "Papa Mike" or such would not be open to her. That would be handicap enough to her. Moreover, even if the Chief Constable had to call everyone in her section (and there is no suggested need to go outside that), that is only 10 persons of whom 3 are women. Even if it had to come to that, the burden would hardly be oppressive for a party with the resources of the Chief Constable. Moreover Miss Omambala was willing, if required to do so, to serve yet further particulars saying who was involved, that all acts were at Dunstable Police Station and had occurred whilst Mrs Liversidge was serving there, between 1st March 1999 and 23rd June 1999. Rule 13 (2) (e) is not satisfied. Moreover, the Human Rights Act and Article 6 serves to emphasise that it is only in a truly plain and obvious case that striking out is appropriate.
56. As to whether, had a case in vicarious or constructive liability on the part of the Chief Constable for the acts of P.C. Fitzgibbon been open to her, Mrs Liversidge, having withdrawn her case against Fitzgibbon, could, as against the Chief Constable, have called evidence of Fitzgibbon's acts in the course of her IT1 605/99, our tentative view would have been that the Tribunal, in excluding ANY evidence as to the activities or conduct of P.C. Fitzgibbon (see their paragraph 3) went too far. But neither side addressed us on the impact of the current statutory provisions where a compromise is reached with what, for the purposes of the argument, may have been needed to be taken to be one of 2 joint tortfeasors. The subject raises difficult questions and answers of possibly wider application. Beyond the tentative view we mentioned we shall not go; we leave these issues for decision in a case where decision upon them is needed. Here it is not.
57. Accordingly, we allow the appeal against the Employment Tribunal's refusal to strike out 605/99; it is to be struck out, not under Rule 13 (2) (e), the only attack upon it that the Tribunal had to deal with, but because the Employment Tribunal had no ability to accept the only remaining part of it, for vicarious or constructive liability on the Chief Constable's part, for the section 16 and section 32 reasons we have given. In consequence the cross-appeal does not arise. If there was an appeal by Mrs Liversidge as to the extension of time granted by the Registrar for the reception of the appellant's reply to the cross-appeal then, as we mentioned earlier, that appeal is dismissed.