United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MICHAEL FORD (of Counsel) Instructed By: Kent County Council Legal Services Sessions House County Hall Maidstone Kent ME14 1XQ
For the Respondent	MISS SOPHIE GARNER (of Counsel) Instructed By: Russell, Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH


 


JUDGE J McMULLEN QC:

1. This case is in substance about whether a police constable may bring a complaint of sex discrimination against a Chief Constable, and in form about Employment Tribunal procedure on striking out a claim. The case is heard under the Employment Tribunals Act 1996, Section 28(4); that is by an EAT judge alone, without complaint by the parties. I will refer to them as Applicant and Respondent.
2. It is an appeal by the Respondent, and a cross-appeal by the Applicant, in those proceedings against a decision of an Employment Tribunal Chairman, Mrs Valerie Cooney, sitting alone at Ashford, registered with Extended Reasons on 1 July 2002. The Applicant was represented by Miss Brown, and today by Mr Michael Ford; the Respondent was represented there and here by Miss Sophie Garner, all of Counsel. The Applicant claims sex discrimination. The Respondent denies the complaint.

The Issue

3. The essential issue, as defined by previous Employment Tribunal Chairmen, was to decide whether the complaint could be maintained in the light of the decision of the Court of Appeal in Chief Constable of Bedfordshire Police v Liversidge [2002] ICR 1135 that race discrimination complaints may not be weighed against a Chief Constable except in limited circumstances. Although that is the substantial point at issue, the form is an appeal contending that the Chairman erred in law in her decision that the Applicant's claim of sex discrimination against the Respondent was not misconceived, should not be struck out and should proceed to a hearing on the merits. An issue arose on appeal as to whether the Chairman had the power to sit alone on the case but that is not pursued. She had it.

The Legislation

Discrimination and the police

4. The relevant provisions of the legislation are as follows. The Equal Treatment Directive ("the ETD") 76/207/EEC provides for member states to implement the principle of equal treatment of men and women in employment and occupation, now incorporated in Art 141.3 of the consolidated version of the Treaty of Rome. The Sex Discrimination Act 1975 gives effect in Great Britain to that obligation. Section 6 in Part II headed Discrimination in the Employment Field provides the forms of discrimination made unlawful by section 1:

"(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman -

(a) in the arrangements he makes for the purpose of determining who should be offered that employment, or

(b) in the terms on which he offers her that employment, or

(c) by refusing or deliberately omitting to offer her that employment.

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her –

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment."

Section 17 defines the engagement of a police officer:

"(1) For the purposes of this Part [Part II], 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."

Section 41 in Part IV headed "Other Unlawful Acts" provides for the liability of employers (41(1)) and of principals and agents:

"(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 as done by that other person as well as by him."

Section 63(1) gives the entitlement to complain:

"(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 II, or

(b) is by virtue of section 41 … to be treated as having committed such an act of discrimination against the complainant,

may be presented to an employment tribunal."

5. The Race Relations Act 1976 is also relevant to the interpretation of the Sex Discrimination Act. Section 16 in Part II of the Race Relations Act corresponds to section 17, and was repealed with effect from 2 April 2001 by the Race Relations (Amendment) Act 2000 Section 4. Section 32(2) in Part IV of the Race Relations Act corresponds to section 41(2). But by section 76A of the amended Race Relations Act 1976, it is provided broadly speaking that a police constable is treated as in the employment of her chief constable, again from 2 April 2001. The Race Relations Act 1976 was modelled on the Sex Discrimination Act, which in turn was modelled on, but was in respects relevant to this appeal significantly different from, the Race Relations Act 1968.
6. The Police Act 1996, makes provision for the establishment of police forces. Section 10, provides as follows:

"General functions of chief constables

(1) A police force maintained under section 2 shall be under the direction and control of the chief constable appointed under section 11.

(2) In discharging his functions, every chief constable shall have regard to the local policing plan issued by the police authority for his area under section 8."

Section 88 defines the liability of a chief constable for torts:

"Liability for wrongful acts of constables

(1) 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 their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor."

The Police Act section 2 provides that police forces are maintained for each of the areas referred to in the statute. Specific powers are given to each chief constable, including the power of appointment of others, to deal with complaints, and, it was held, power to delegate: cited Liversidge [2002] ICR 1135 para 49.

Employment Tribunal procedure

7. Procedural rules are laid down by the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001. The relevant ones are Regulation 10, which provides for Tribunals to observe the overriding obligation to ensure that cases are tried justly, and Rules 6 and 15(2)(c). Rule 6 deals with the entitlement to sue

"(1) A tribunal may at any time before the hearing of an originating application, on the application of a party made by notice to the Secretary or of its own motion, hear and determine any issue relating to the entitlement of any party to bring or contest the proceedings to which the originating application relates.

(2) A tribunal shall not determine such an issue unless the Secretary has sent notice to each of the parties giving them an opportunity to submit representations in writing and to advance oral argument before the tribunal."

Rule 15 gives the power to strike out a claim:

"(2) A tribunal may - ...

(c) … at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, misconceived or vexatious."

Regulation 2(1) says:

" 'misconceived' includes having no reasonable prospect of success"

In addition CPR Part 24.2 provides as follows:

"Grounds for summary judgment

"24.2 The court may give summary judgment against a claimant … on the whole of the claim or on a particular issue if it considers that

(i) that claimant has no real prospect of succeeding on the claim or issue ... "

The Chairman's Decision

8. The Employment Tribunal Chairman decided not to strike out the claim under Rule 15. The Respondent appeals against that finding. The Applicant contends by cross-appeal that she was correct in the result. I gave directions on paper in Chambers on 21 October 2002 sending this appeal to a full hearing and requiring further steps to be taken, including the filing of sequential skeleton arguments and a draft of amended further particulars.
9. The Chairman directed herself by reference to the relevant provisions of the Sex Discrimination Act 1975, Employment Tribunal (Constitution and Rules of Procedure) Regulations 2001, the ETD and what appear to me to be the principal authorities to which I will turn.

The Parties and the Chairman's Findings

10. The Chairman made no specific findings about the nature of the Applicant's work as there had been no substantive hearing. What I say next appears from her pleadings and, for that reason, is tentative in nature. The Respondent is a Chief Officer of Police. The Kent Constabulary has 3,500 police officers and 1,500 civilian employees. The Applicant, who is 30, was engaged as a Police Constable at Kent Constabulary on 6 December 1993. She is now a Detective Constable. It is common ground that she is not an employee: Commissioner of Police for the Metropolis v Lowry-Nesbit [1999] ICR 401 EAT.
11. The Applicant went on maternity leave in late 1997. When she returned she contends a series of events began which are, each or together, acts of sex discrimination, including allocation of the Applicant to particular work, to courses, failing to handle complaints she made, comments on her status, the language and tone of senior officers, sexually offensive comments and a range of other matters in respect of her fellow-officers and her superiors. She was promoted to Detective Constable. She went sick and was prescribed antidepressants and was eventually admitted to hospital with a suspected stroke. She attributes her condition to the treatment she received.

The Respondent's Case

12. The Respondent submitted that the Chairman had erred in law in a number of major respects. First, Miss Garner contends that the Tribunal had no jurisdiction to hear the Applicant's claim. The Chairman should have so decided under Rule 6 and not under Rule 15, and her decision relating to the definition of "misconceived" was wrong in law. Secondly, counsel contended that a number of other errors had occurred, including the attention given by the Chairman to the ability of the Applicant to amend her claim to include a claim under the principle in Burton v De Vere [1997] ICR 1 (see para 18 below), when such a draft was not in front of the Chairman. Such is not a new label but a new claim. It was contended that binding authority exists in the form of Liversidge and the claim should not have been allowed to proceed. The Applicant, nor any of her colleagues, is in an employment relationship with the Chief Constable nor in the relationship of principal and agent; Section 41(2) is therefore inapt. As a matter of binding authority those provisions do not apply to avail the Applicant of a claim under the Sex Discrimination Act or the ETD. Nor for that reason can she claim that liability exists in the Chief Constable for "essentially management decisions" (McGlennon [2002] ICR 1156 (below) para 38) amounting to sex discrimination.

The Applicant's Case

13. On behalf of the Applicant it is argued that the power of the Chief Constable to make directions under Section 10 of the Police Act makes him liable under Section 17 and 41(2). Later authority, distinguishing Liversidge, indicates that the Applicant has a claim which must be heard, being a sex discrimination claim, unless it is wholly wrong to allow it to proceed. It is contended by Mr Ford that there is no need to amend the Originating Application to cope with claims made under the Equal Treatment Directive, but he acknowledges that an amended claim needs to be put in to deal with what is described as the Burton v de Vere point. In short he submits: (a) purposive construction of sections 17 and 41(2) to give effect to the ETD (the ETD point) and/or (b) the identification of management decisions in the Originating Application (the McGlennon point) yield the result that the Applicant should be allowed to argue her case in the Employment Tribunal.

The Authorities

14. Much of this case is to be decided by reference to the relevant authorities. In short, they provide as follows:

(1) In Liversidge the Court of Appeal held that Section 16 of the Race Relations Act barred a race discrimination claim based upon complaints made by an Officer in respect of acts of discrimination by other Constables. It held that the EAT, (Morison P) was wrong in allowing a claim of sexual harassment committed by a policed sergeant to be pursued against his chief constable and him in AM v WC [1999] ICR 1218.

(2) In Chief Constable of Cumbria v McGlennon [2002] ICR 1156 EAT, Mr Commissioner Howell QC and members, found that the words "any act done by him" in Section 17 of the Sex Discrimination Act 1975 included management decisions made by other officers with the express or implied authority of a Chief Constable, and upheld the decision of an Employment Tribunal after a full hearing in respect of sex discrimination (but not victimisation). It was not a strike-out case. Argument was heard before, but the judgment was given after, consideration of the Court of Appeal's judgment in Liversidge.

(3) In Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, the Court of Appeal dealt with an application to strike out claims of sex and race discrimination by a police officer based on her treatment by colleagues, and the failure by officers to prevent such treatment. The Court rejected an argument, raised for the first time at that Court, based on Liversidge that the Tribunal had no jurisdiction to hear the complaint.

(4) In general a discrimination complaint should not be struck out without an investigation of the facts: see Lord Steyn's speech in Anyanwu v South Bank Student Union [2001] ICR 391, at 399E-F, and Hutchinson LJ in [1998] QB 65 Farah v Commissioner of Police of the Metropolis CA at 79F-G.

(5) A Chief Constable is not vicariously liable, and is not directly liable under Race Relations Act 1976 section 32, for the racially discriminatory acts of his or her officers, at least while carrying out their duties as officers of the peace in relation to the public: Farah, as interpreted in McGlennon [2002] ICR 1156 at paras 43-45.

15. The finding by the Chairman against the Respondent is in part the subject of a concession. She decided that the claim could not be misconceived, since the origination of the complaint was at a time prior to the judgment of the EAT and the Court of Appeal in Liversidge. Mr Ford on behalf of the Applicant concedes that is an error, since the principal focus of the question "Is this claim misconceived?" is at the time of the hearing of the matter. That is a proper concession for him to make. In my view consideration is properly focused the time of the hearing, thus an error has been identified and conceded.
16. The Chairman made her decision as to the use of the word "misconceived" by its description in the 2001 Rules. She decided that the case did not fall into that category. This is a less stringent standard than "frivolous", which suggested that the claim had no substance whatsoever, was utterly hopeless and was bound to fail: Balamoody v UK Central Council for Nursing, Midwifery and Health Visiting [2002] ICR 646 CA at para 46 In order to understand the progress of this appeal, it is necessary first for me to decide what more needs to be done in the light of that concession. Applying the test in Bennett v Southwark London Borough Council [2001] ICR 881 CA the approach I take is to ask whether the decision on this point is otherwise incontestably correct. .

Procedural matters

17. I then turn to the procedure. It is contended on behalf of the Respondent that the Chairman wrongly acted under Rule 15, whereas she should have been focusing on Rule 6. In my judgment nothing turns on that, except to allow her approach to the word "misconceived" to fall under more scrutiny. I have seen the correspondence leading up to the preliminary hearing on this matter, together with the skeleton arguments by both Counsel. There is no doubt that the Chairman was being asked to decide this matter under Rule 15(2)(c). The complaint that the Chairman misconstrued her role so as to vitiate the whole decision is rejected
18. Even if application of Liversidge, which proceeded under Rule 6 as a matter of jurisdiction, were appropriate, in my judgment the result is the same. What the Respondent was seeking was to stop this case going any further. The Chairman ruled by reference to a test, not dissimilar to that in the CPR, that the case should go on. She would have reached the same conclusion had she been asked to rule specifically under Rule 6, for reasons which will appear in due course.
19. The Chairman further considered the application of the principle in Burton v De Vere. Her approach is criticised on behalf of the Respondent, on the basis that she was ruling upon an inchoate application, the result of which was unsure, to introduce a new claim. Nevertheless, in my view, although it is always preferable to have a draft by Counsel available for inspection, in this case the parties could not have been in doubt as to what principle of law was being referred to and the nature of the claim. The claim involves the duty of a person in control of a situation not to allow racial harassment to occur. According to the headnote, the EAT, Mrs Justice Smith presiding, held that:

"... an employer "subjected" an employee to … racial harassment … if he caused or permitted the harassment to occur in circumstances in which he could control whether it happened or not; that, when considering whether an employer had subjected his employee to racial harassment where a third person was primarily responsible, an employment tribunal should ask themselves whether the event in question was something which was sufficiently under the control of the employer that he could, by the application of good employment practice, have prevented the harassment or reduced its extent."

20. It will be recalled in that case that a well known entertainer had appeared at a dinner, and made offensive racist comments about persons of Afro-Caribbean origin, which affronted such workers employed to provide drinks and food to the audience. They succeeded in their claim against their employer, de Vere Hotels, because the hotel was in a position to control the environment. Thus, the nature of the application to introduce a further claim based on Burton v de Vere was well known to both parties in the instant case. I do not excuse the failure to put all amendments before the Chairman at the appropriate time and, in due course, I will consider the question of costs relating to this particular application. But she did not err in allowing the point to be raised in a yet undrafted amendment. It has now been finalised following my direction. I will allow it to be made. As for the ETD pleading, I do not consider this is a new claim, for the claim under the Sex Discrimination Act is properly to be regarded as including its construction pursuant to the ETD.

Liversidge, the ETD and management decisions

21. I then turn to the application of the principle set out in Liversidge. At first sight this case is authority for the rejection of any claim based on the Race Relations Act unless it is a direct allegation against the Chief Constable. This, however, is a claim under the Sex Discrimination Act. Again, at first sight, the language of the statutes is the same, and should yield the same results. As Peter Gibson LJ said, at paragraph 15, the language is deliberately couched in identical terms, but he did say that the result would differ, if the Equal Treatment Directive 76/207/EEC and other applicable Community provisions require a special meaning to be given to the Sex Discrimination Act. In my judgment that is precisely the approach to be taken in this case. There is, as there is not in force at the moment in the arena of race relations, a Treaty obligation on sex discrimination and that is the ETD. The members of the Court of Appeal reached its conclusion sharing "considerable regret" and calling on Ministers to consider whether it was necessary to amend the Sex Discrimination Act: at paras 76, 84, 94. As I will hope to show, that may be unnecessary.
22. It is common ground in our case that the Respondent is an emanation of the State and thus, if the Directive applies, it is directly enforceable against him at the instance of the Applicant. It seems to me that it is also sufficiently unconditional so as to allow enforcement by the Applicant of her right to equal treatment in her working conditions, as was proved in Johnson v Chief Constable of the RUC [1987] ICR 83. Thus the primary conditions are in place for a claim of direct enforceablitiy to be argued. But Mr Ford argues principally for a purposive construction of the Act rather than direct enforcement of the ETD. The purpose of the ETD exigible from Art 1, it is submitted and I accept, is the provision of a right to complain of sex discrimination given to those engaged in a very broad range of occupations.
23. It will be necessary to examine the language of that directive, for it is where the distinction between the approach to the two domestic anti-discrimination statutes lies. I accept that, as a general principle, interpretations of both statutes should be consonant: see the cases known as Rhys-Harper v Relaxion Group Ltd [2001] ICR 1176 CA (judgment pending in the House of Lords). The Directive seeks to promote equal opportunities for men and women in whatever capacities they appear to work. Article 1.1 requires there to be no discrimination whatsoever on the grounds of sex. Article 3.1 requires equal access to all jobs or posts, whatever the sector or branch of activity. Article 5 deals with working conditions. Article 2.2 provides for derogation only for those occupational activities, for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor. There is reinforcement for that broad approach derived from what is now Article 141 of the EU Treaty which refers to equality of treatment in employment and occupation, ensuring full equality in practice between men and women in working life: see Article 141. 3 and 4.
24. Those provisions of EU law have been applied to rather different public sector engagements. For example, in Johnston the European Court of Justice, on a reference by the Industrial Tribunal in Northern Ireland, held that the Directive was directly enforceable against the Chief Constable, and applied to protect a female police officer. The fact that she had a contract of employment seemed to be of no consequence to the Court in its broad approach. She did, of course, have the status of Constable. In Sirdar v Army Board [2000] ICR 150, the European Court at 613G-H provided protection for a female cook in the Royal Marines and in Perceval-Price v Department of Economic Development [2000] IRLR 380, at paragraphs 25-27, the Northern Ireland Court of Appeal held that the Vice-President of the Northern Ireland Industrial Tribunal and Fair Employment Tribunal, was a worker within the meaning of the Directive.
25. The broad approach taken by the European Court to the meaning of "worker" and "working conditions" finds a reflection in the Commission Recommendation on the protection of the dignity of women and men at work 92/131/1991, since that includes, in its preamble, "conduct of superiors and colleagues" based on gender. Thus, given my understanding that a broad approach is to be taken to the meaning of "worker" and to the protection to be given to those engaged in work in the Member States of the European Union, should it be applied to a police constable? Peter Gibson LJ in Liversidge at para 23 referred to "a special category of workers such as the police". Again, Johnston v RUC may seem to be authority for that proposition. Lest the existence of a contract of employment in Ms Johnston's case proves to be a distinction, it seems to me that the purpose of the Directive is one of broad application to all people who are engaged in a work relationship with someone who is in a position to direct work and to cause payment to be made. The Applicant is in such a position.
26. I know that a constable is an officer at common law and has individual powers and discretions vested in him or her as to which they cannot usually be directed: see Liversidge at para 63. Nevertheless, the reality of the situation is that a police force such as Kent is a substantial body based on a hierarchical command structure: compare McGlennon at para 37. Just like any regular employment relationship there are superiors and juniors; juniors must take instructions or, in certain situations, orders and the superiors are under a duty to provide direction, control, support and so on. They are under a duty to organise the working conditions in such a way as to effectively discharge the duty to the public of providing a police force, and also to provide what might broadly be described as a fair and safe working environment, for all those people, whether they be constables or civilian employees, within the scope of the Kent force.
27. Thus, I approach the application of the Directive to the relationship between the Applicant and the Respondent with a view to the purposive construction of the words "acts done by him" in section 17, and, if necessary, "anything … done by that other person" in section 41(2), so as to include acts done by officers with the express or implied authority of the Chief Constable, the doctrine of vicarious or constructive liability. Mr Ford did not go so far as to submit that purposive construction would include responsibility for acts of the Applicant's co-officers in the nature of individual sexual harassment, for presumably that would be to ignore that aspect of the holding in Liversidge. The claim which I have been asked to consider starts with Section 10 of the Police Act. Here, it is undoubtedly the duty of the Respondent to direct and control a police force. It consists of constables and, of course, civilians. The functions undoubtedly include training, promotion, support and direction of officers, and the discharge of general police duties to the public.
28. The general approach to liability of a chief officer of police by Section 88 is to impose liability on him or her for torts, for example, personal injury suffered in the course of the engagement of constables. The Sex Discrimination Act, Section 41(2) sets out what Peter Gibson LJ in Liversidge did not describe as "vicarious liability" but as "constructive liability", adopting that phrase from Lindsay P's judgment in the EAT. It seems to me that in the discharge of the Chief Constable's functions under Section 10, he is entitled, and in reality is bound, to provide junior officers to carry out many of them. Thus, officers junior to him, but superior to the Applicant, are in the position of discharging the chief officer's functions on his express or implied authority, and at least as regards what Mr Ford described as "management decisions", following that distinction made in McGlennon at para 38, and leaving to one side the duties of policing by officers, as used to be said, on the beat.
29. Further, in respect of issues such as are likely to be argued in this case, that is allocation of work, allocation to courses, promotion, training, support and the handling of complaints, it seems to me that Section 41(2) creates the relationship of agent and principal as between the Chief Constable and his junior officers. Again, looking at the facts as pleaded in this case, without making any comment upon their cogency, the Applicant is here complaining of things done by an agent of the Chief Constable, and thus Section 41(2) would fix him with liability
30. In order to reach that conclusion, I have taken a purposive construction of Section 17 and if necessary Section 41(2), and of the need to provide a remedy for a worker alleging sex discrimination in a police-work context. Otherwise, a very large number of people in the public sector, members of police forces throughout the United Kingdom, would be deprived of a right to make a complaint of sex discrimination, save in what must be the exceptional circumstances of direct discrimination made against the chief constable personally.
31. In order to give effect to the Directive, I construe Sections 17 and 41(2), so as to enable that claim to be made. The acts done by the Chief Constable include those of his officers with his authority, and certainly include management decisions of junior officers on his behalf, as was found in McGlennon without resort to the ETD. I note that in McGlennon a claim was being made on behalf of a male police officer of sex discrimination, in respect of his direction to a particularly unfavourable posting. The Employment Tribunal allowed the claim to proceed and such claim was upheld by the EAT, by construction of the words "act done" so as to apply section 17 to matters which were essentially management decisions, such as recruitment and posting, made as part of the direction and control of the force vested in the Chief Constable, but in fact carried out, under his authority, by other officers of the appropriate level. On that basis the EAT distinguished Liversidge.
32. If the EAT were wrong in that case, it held that there was no separate remedy under the Equal Treatment Directive. It is not necessary for me to deal with that, since I am happy to follow Mr Commissioner Howell QC on his principal finding and support it with a purposive construction to give effect to the ETD. But I do accept Mr Ford's argument that the EAT looked at whether there was ambiguity in Section 17 so as to give rise to a different construction. The Court of Appeal in Liversidge decided that Section 17 was not ambiguous and so a purposive construction in the domestic sense of divining the purpose of Parliament, was inapt. A different approach is enjoined to purposive construction in the European sense. The domestic court owes an interpretive obligation, that is to interpret domestic legislation so far as possible to give effect to a Directive in the same field: Marleasing [1990] 1-ECR 4135 ECJ at 4159. Mr Ford tells me by reference to the skeleton argument to the EAT in McGlennon that the argument he advances to me on purposive construction and on Section 41(2) was not made. If the EAT was saying it is necessary to find ambiguity in order to construe the statute to give effect to the ETD's purpose, I respectfully disagree, but I am conscious that that was a three-member EAT hearing a full appeal, not a strike-out. All that is necessary is to find a possible construction of the statute which delivers the purpose of the Directive, and a broad approach to the acts done by the Chief Constable yields that result for the reasons advanced by Mr Ford. That incidentally would arguably make the ETD directly enforceable since it links it to the procedural framework of Employment Tribunal claims in accordance with Barber v Staffordshire CC [1996] ICR 379 CA 394H-396B per Neill LJ.
33. It will also be noted that in Hendricks v Commissioner of Police for the Metropolis above, the Court of Appeal dealing, as I have said, with claims of sex and race discrimination, said this, per Lord Justice Mummery (paragraphs 43 and 44):

"In this case however it is contended by Miss Hendricks that the Commissioner is liable for the continuing discrimination suffered by her on the basis of what has been done or omitted to be done by him in the exercise of the statutory responsibility imposed upon him by the 1996 Act for the direction and control of the force, and that this falls within the jurisdiction of the employment tribunal under s. 17 of the 1975 Act and s. 16 of the 1976 Act. It is clear from the submissions that were made to the employment tribunal and in this court on behalf of Miss Hendricks that it is her case that the Commissioner is directly liable for subjecting Miss Hendricks to continuing acts of discrimination in the force under his direction and control alleged rather than vicarious and constructive liability for the discriminatory acts of others. Mr Cavanagh submitted that the simple fact that a chief officer has direction and control of his force does not mean that any acts of a managerial nature carried out by subordinate officers are his acts for the purposes of the 1975 and the 1976 Acts. He also submitted that none of the complaints made by Miss Hendricks relate to actions to be done by the Commissioner himself or to actions done by others on his delegated authority.

In my judgment the facts need to be established before it is decided whether Liversidge covers this case. If discrimination is proved, then it may be possible to distinguish Liversidge. If discrimination is not proved, the claim would fail quite apart from the Liversidge point."

34. Thus it seems to me the impetus in claims, such as the instant one, is for a hearing to take place, unless so clearly ruled out by the application of authority. As I have said, by whichever route Section 17 seems to me to require the claim not to be struck out but to be continued, as I have construed Section 17 on its own or together with Section 41(2).
35. I have been referred to a further authority: Commissioner of Police for the Metropolis v Ranjan EAT EAT/310/02 9 October 2002, which deals with the Burton v de Vere argument, from which it appeared again that there is an imperative to have a consideration of the facts, for at paragraph 7, Burton P said:

"If the De Vere case is to get off the ground, there must be consideration of facts which render the Commissioner liable, and facts as to his own conduct and as to his own control. Plainly, therefore, the Chairman cannot be supported in saying there were no additional facts, or that this was not a substantial amendment. The whole investigation as to what the Commissioner did or did not do would not arise on the previously pleaded case."

The President was also indicating a hearing is appropriate in such circumstances. I have already decided that it is appropriate for the Burton v de Vere case to be argued in this case, by reason of the late pleading, and it will require proper consideration.

36. I have been referred to a number of authorities on agency by Counsel, but it seems to me unnecessary to say anything more in respect of management decisions than that the normal common law principles would appear to be applicable in the light of McGlennon.
37. In those circumstances, I dismiss the appeal and allow the cross-appeal and I will hear Counsel on further directions.
38. I heard argument from Miss Garner about the difficulties associated with allowing the amendment, but in the interests of justice, even though there is a considerable period of time since the relevant events, I am now in a position to make directions for the case to be proceeded with on the basis of the amendment. Much of the amendment involves a legal pleading, but I accept her point that further investigation is required, and I did indicate that I will hear her on costs. She is correct to put before me Selkent [1996] ICR 836 arguments, which, in the interest of justice, and balancing the prejudice to the parties, convince me that the Burton v de Vere amendment should be allowed. The costs incurred by it will be paid by the Applicant on the standard basis as it was unreasonable not to put it forward earlier, to be assessed by the Employment Tribunal if not agreed.