United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOHN DAVIES QC Instructed by: Messrs Hunt Kidd Alderman Fenwick's House 98-100 Pilgrim Street Newcastle upon Tyne NE1 6SQ
For the Respondent	MR ANDREW SHORT (Of Counsel) Instructed by: Messrs Weightmans High Holborn House 52-54 High Holborn London WC1V 6RL

SUMMARY

The Claimant was a serving Police Constable. He was dismissed for disciplinary reasons after a hearing before the Police Disciplinary Board which ordered his dismissal. He appealed to the Chief Constable who upheld the decision of the Police Disciplinary Board. The Claimant then began proceedings in the Employment Tribunal asserting that he had been dismissed for a reason that was automatically unfair ['whistleblowing']. The Respondent argued that the proceedings sought to impugn the decision of the Police Complaints Board which was on the authority of Heath v Commissioner of Police for the Metropolis 2005 ICR 329 a quasi judicial body whose decisions were immune from suit. The Chairman of the Employment Tribunal upheld the submission but permitted the Claimant to proceed with those parts of his claim that related to the decision to bring disciplinary charges against the Claimant and the decision of the Chief Constable to dismiss him. The EAT held that the proceedings of the Police Complaints Board, including its decision were immune from suit because it was quasi-judicial body and that then enactment of S37(1) of the Police Reform Act 2002 did not affect this immunity in the case of an alleged 'whistleblower'


 


HIS HONOUR JUDGE SEROTA QC

Introduction

1. In this case I have held that the conduct, procedure and decisions of a Police Disciplinary Board are immune from suit because it is a judicial body. The protection afforded to Police Officers who may be 'whistleblowers' introduced by Section 37(1) of the Police Reform Act 2002 does not affect this immunity and does not enable Police Officers to challenge the conduct, procedure or decisions of the Board.
2. This is an appeal from a Decision of the Employment Tribunal at Newcastle at a Preliminary Hearing before the Chairman D Burton Esq sitting alone that was sent to the parties on 9 January 2006. I will set out the facts in greater detail shortly. That the Claimant was a Police Constable who had been dismissed after a hearing before the Police Disciplinary Board whose decision was upheld by the Chief Constable of the British Transport Police. The Claimant wished to challenge certain findings of the Police Disciplinary Board but the Chairman held that the Claimant was precluded from making such challenge by reason of the Board's immunity from suit as a quasi-judicial body.
3. The appeal was referred to a full hearing by President Elias J on 10 March 2006.

Factual Background

4. The factual background to these proceedings is likely to be highly contentious and I only set out the background facts as alleged in order to explain the issues that I have to decide.
5. The Claimant was a Police Constable. On 11 February 1997 he attended a fatality with a Sergeant Haggart and Police Constable Tina Ronald. The Claimant alleges that Sergeant Haggart found a piece of skull at the scene and retained this as some sort of trophy which he subsequently gave to PC Ronald. On 13 December 2001 the Claimant maintained that PC Ronald told him what had occurred and attempted to give him the piece of skull. The Claimant then retained a CCTV tape. He did not, however, report the matter to his superiors at the time.
6. On 5 June 2002 the Claimant informed his federation representative Sergeant Lichfield that he was being bullied by Sergeant Haggart. He then informed Sergeant Lichfield of the inappropriate behaviour at the accident on 11 February 1997. The disclosure by the Claimant led to the arrest and suspension of both Sergeant Haggart and PC Ronald. Investigations were carried out but the Claimant's allegations were either found to be unsubstantiated or could not be found to be proven. A prosecution was not pursued. Sergeant Haggart and PC Ronald, however, complained about their arrest, detention and suspension. In paragraph 7 of his grounds of complaint it is said that the Claimant was informed by Chief Inspector Liversley and Assistant Chief Constable Mulhearn that he was a 'witness/professional standards reporter' in this matter and that no further action would be commenced against him in relation to that disclosure. Nonetheless, investigations took place at a high level and a report was made to the Crown Prosecution Service in early January 2004. The Crown Prosecution Service decided it would take no action against the Claimant but suggested the matter should be dealt with internally by the Respondent.
7. On 10 March 2004 the Claimant was served with 17 Regulation 9 notices under the Police Conduct Regulations 1999/2004. These notices relate to allegations that:

(i) The Claimant failed to act when he learned of the unlawful act of his colleagues Sergeant Haggart and PC Ronald

(ii) The Claimant had made false allegations against Sergeant Haggart.

(iii) The Claimant had wrongfully retained the CCTV video tape.

(iv) The Claimant incited others to make false allegations about Sergeant Haggart.

(v) The remaining notices relate to other matters.

8. On 1 April 2004 the Police Reform Act inserted a new Section (Section 43KA) into the Employment Rights Act 1996 that afforded the Claimant as a Police Constable protection from detriment and dismissal by reason of having made a protected disclosure. I shall return shortly to the relevant statutory provisions.
9. On 12 April 2004 the disciplinary hearing began before the Police Disciplinary Board. Of the 17 Regulation 9 notices only 5 had survived as follows:

(1) On 13 December 2001 the Claimant was aware that Sergeant Haggart and PC Ronald had committed an unlawful act on 11 February 1997 and had failed in his duty as a Police Constable to report the matter for immediate investigation.

(2) On 13 December 2001 the Claimant had improperly retained the CCTV video tape.

(3) – (5) Were allegations that were not linked to the events of 11 February 1997.

10. The Police Disciplinary Board gave its decision on 25 April 2005. It found the Claimant guilty of all 5 charges and directed that he be dismissed from the force. The Claimant availed himself of his right to have a Chief Constable review the decision and on 30 June 2005 the appeal was allowed in respect of one charge but dismissed in relation to the remaining four. The dismissal remained in effect.
11. Thereafter there was a further appeal to the Police Appeal Tribunal under Section 85 of the Police Act 1996. The Police Appeal Tribunal rejected one further charge but upheld three others. What took place before the Police Appeal Tribunal is not relevant to this appeal.
12. The Claimant maintained that the reason, or one of the principal reasons for his dismissal, was that he had made a protected disclosure. Accordingly, he submitted that the dismissal was automatically unfair under Section 103(A) of the Employment Rights Act 1996. He also alleged that the dismissal was substantively or procedurally unfair in accordance with Sections 98(1), (2) and (4) of the Employment Rights Act. He sought to challenge the findings of the Police Disciplinary Board. He sets out at paragraph 11 of his grounds of complaint, those matters of which he was convicted so as to speak and maintains at paragraph 14 that the dismissal was wrongful and that the reason or principal reason for his dismissal was because he had made a protected disclosure.
13. The Respondent applied to strike out the claim brought under Section 103A on the basis that the immunity granted to judicial or quasi-judicial bodies prevented any claims to the Employment Tribunal concerning allegedly unlawful acts committed in the course of the disciplinary proceedings before the Police Disciplinary Board. The Respondent submitted that the Police Disciplinary Board was a judicial body which acted judicially and the immunity principle applied to all actions sought to be founded on alleged acts or omissions of the Board.
14. Other points were taken as to the merits of the Claimant's case that he had in fact made qualifying disclosures, whether he was able to make a claim for unfair dismissal and whether charges made against the Claimant or the decision of the Board were because of or principally because of he had made a qualifying disclosure.
15. As I have said the matter came before Mr D P Burton at a pre-hearing review in Newcastle on 9 January 2006. As appears shortly he declined to strike out the claim entirety under Section 103A of the Employment Rights Act on grounds of lack of jurisdiction to entertain the claim. However, he directed that the proceedings before the Police Disciplinary Board could not form the basis of a claim, as the decision was immune from suit and that the claim in respect of dismissal should be restricted to the actions of the Chief Constable in reviewing and confirming the decision to dismiss.
16. Mr Burton gave oral reasons and regrettably the Claimant omitted to seek written reasons for about a month, and certainly outside the 14 day time limit for requesting written reasons set by Rule 30(5) of the Employment Tribunals Rules of Procedure. Mr Burton, however, kindly did provide reasons at the request of the Employment Appeal Tribunal and I shall refer to these later.

The Relevant Law

17. I shall firstly consider the position of the Police Complaints Board and the appeal to the Chief Constable. The initiation of disciplinary procedures against a Police Constable is governed by the Police (Conduct) Regulations 2004 made under powers conferred by the Police Act 1996. The regulations provide that after investigation of complaints, proceedings are initiated by service of a notice under Regulation 9. These are referred to as 'Regulation 9 Notices'. Regulation 14 requires that where a case is to be referred to a hearing, written notice is to be given to the Police Officer. He is also, of course, to be given notice of any hearing (Regulation 16). The Police Disciplinary Board is empowered by Regulation 35 to impose a number of sanctions including '(ii)(a) Dismissal from the Force'.
18. Regulation 40 is headed 'Request for a Review: Officers other than Senior Officers' and provides:

"(i) Where -

(a) a sanction is imposed on an Officer other than the Senior Officer under Regulation 35(1) … the Officer concerned shall be entitled to request the Chief Officer of the force concerned … to review the finding or the sanction (if any) imposed or both the finding and the sanction."

19. Regulation 42 provides that the reviewing officer may confirm or overturn the decision of the hearing or may impose a different sanction. Regulation 42(3) provides:

"The decision of the reviewing officer shall take effect by way of substitution for the decision of the hearing and as from the date of that hearing"

20. There is provision to appeal to a Police Appeal Tribunal.
21. The authority which is at the core of this case is Heath v Commission of Police for the Metropolis [2005] ICR 329. In that case the Court of Appeal after extensive examination of the relevant regulations and authorities, determined that a Police Disciplinary Board when undertaking an investigation into complaints, was a judicial body. This part of the decision is not controversial and both parties have accepted before me that the Police Disciplinary Board in the present case is to be treated as a judicial or quasi-judicial body. Consequent on its findings that the Police Disciplinary Board was a judicial body the Court of Appeal went on to consider the extent of any immunity from suit. It is relevant to note the factual background of that case. The Claimant, a serving Police Officer had raised a complaint against a male colleague for having sexually assaulted her at work. A Police Disciplinary Board appointed by the Commissioner of Police for the Metropolis was all male and the Claimant maintained she was intimidated by this. She also complained that the Board had permitted Counsel for the other officer to humiliate her by asking her, without complaint from the Board to demonstrate how she had been assaulted. She had commenced proceedings in the Employment Tribunal against the Commissioner of Police for sex discrimination in the conduct and selection of the Board. At paragraph 15 Auld LJ referred to the immunity that was in issue as being:

"one of absolute immunity in suit for things said or done in judicial proceedings."

22. He then said this at paragraph 17:

"17 Mr Hand submitted, and I agree, that there is no basis for the proposition that the absolute immunity rule only attaches to defamatory statements. As the employment tribunal well described in paras 9(o)-(q) of its extended reasons, and as the Employment Appeal Tribunal also found, it attaches to anything said or done by anybody in the course of judicial proceedings whatever the nature of the claim made in respect of such behaviour or statement, except for suits for malicious prosecution and prosecution for perjury and proceedings for comtempt of court. That is because the rule is there, not to protect the person whose conduct in court might prompt such a claim, but to protect the integrity of the judicial process and hence the public interest. Given that rationale for the rule, there can be no logical basis for differentiating between different types of claim in its implication. The width of its application in this respect has been judicially stated many times, most notably in Munster v Lamb (1883) 11 QBD 588, per Fry LJ at pp 607-608, and Marrinan v Vibart [1963] I QB 528 , per Sellers LJ at p 535 and per Diplock LJ at pp 538-539."

23. I should also refer to what Auld LJ had to say:

51. Mr Hand emphasised the public policy principle, underlying the rule of absolute immunity, which, he said, must have been taken into account by Parliament when enacting legislation giving rise to the 1985 Regulations. It is in the public interest that those involved in judicial proceedings should be able to speak and act openly without fear of subsequent suit for such conduct, and such public interest applies particularly strongly to police disciplinary proceedings. He said that there was no basis upon which special provision should be made to exclude claims for unlawful discrimination, however important they have become, from the effect of that rule, or that, as Miss Booth suggested, it so outweighed the public policy interest behind the rule of maintaining the integrity of justice that it was necessary to dis-apply it in relation to such claims.

52. Looked at, for the moment, solely through the eyes of our domestic law, I have no hesitation in agreeing with Mr Hand's stance. The absolute immunity from suit is a core immunity in our system, critical to the integrity and effectiveness of our judicial system, which, save for a few well defined exceptions identified in paragraph 17 above, applies to all forms of collateral action however worthy the claim and however much it may be in the public interest to ventilate it. Claims of unlawful discrimination are clearly of that importance, but no more than many others, such as the citizen's right to protect his own good name or good character or to claim for conspiracy to injure or for misfeasance in public office, say, in giving evidence in a criminal trial resulting in the claimant's loss of liberty.

53. As I have indicated, Lord Hoffmann and a number of other distinguished jurists consider that necessity is the modern rationale for application of the rule when balancing it against competing interests. However, the question in the case of such a well established and generally applicable common law immunity is not, as Miss Booth suggested, whether it should be "extended" to relatively new statutory provisions giving citizens rights in respect of unlawful discrimination, but whether it is necessary to make special provision for them by removing the immunity in relation to such claims. The dicta of Lord Hoffmann in Taylor, of the Australian High Court in Mann v O'Neill, of Lord Hope in Darker and of Lord Hobhouse in Hall v Simons all proceed on the basis that the necessity for the core immunity and its wide application to claims of all sorts is established. Necessity as a consideration arose in those cases in relation to more peripheral issues, in the main as to outer limits of the judicial process giving rise to the protection of the rule, for example in the investigation of and preparation for trial. It was, as I have said, in that context that Lord Hoffmann, in Taylor, cautioned against further extension of the rule merely by analogy. In short, I do not consider, as a matter of our domestic law that focus on the rationale of necessity for the application of the absolute immunity rule assists Miss Heath's case.

54. For a sound and simple expression of the law and its application to the facts of the case, the following formulation of the Employment Tribunal, at page 9 of its extended reasons cannot be bettered:

"(o) We are satisfied that there is absolute immunity attaching to the proceedings in a police disciplinary hearing in the same manner as would attach to proceedings in a court of justice. In this regard we see no distinction between statements made in the course of proceedings not being actionable for defamation as a matter of public policy and a principle based equally on public policy that a complaint of discrimination should not be permissible in respect of the conduct of such proceedings, whether in respect of the composition of the disciplinary panel itself or anything done or said in the performance of the functions by those taking part in such proceedings, where it can properly be said that the alleged acts or omissions are within their particular function.

(p) Clearly the law as to judicial privilege has developed over time. It was originally intended no doubt for the protection of judges sitting in recognised courts of justice established as such. The object being that judges might exercise their functions free from fear that they might be called to account for any words spoken as judges. It is also clear that the doctrine has been extended to tribunals which exercise functions equivalent to those of an established court of justice.

"(q) In the course of its development the doctrine of judicial privilege and/or immunity was developed with particular regard to actions for defamation. The statutory torts of discrimination did not exist when the doctrine was originally propounded, however the doctrine must be taken to apply equally to claims of discrimination as they apply to claims of defamation. These considerations are that immunity is necessary in order that the proceedings may be conducted in a manner which will achieve its purpose of ascertaining the truth, and a just result without fear that those taking part in the proceedings might be subjected to legal action for things said or done in the course thereof."

55. On the same theme, the Employment Appeal Tribunal should be given the last word under this ground of appeal in a passage that, for convenience, I repeat from paragraph 26 of its judgment:

"26. …The rule is a longstanding one of public policy which applies in respect all actions sought to be founded on the alleged acts or omissions of the participants in proceedings to which the rule applies, and Parliament can be taken to have been aware of it when enacting the 1975 Act."

24. It will be seen from the passages that I have cited that Auld LJ held that the immunity applied to all forms of collateral action and included anything done or said by the Board in respect of their functions. At paragraph 101 Auld LJ considered what would have happened had the Claimant in that case objected to the all male constitution of the Board so that the Board would have had to rule on the matter. He said:

"Any such ruling would undoubtedly have been covered by the immunity and could only have been challenged through the domestic appellate route or by way of judicial review. It would undoubtedly have been immune from proceedings by way of complaint of sexual discrimination before an employment tribunal."

25. Neuberger LJ, dissented on the question as to whether the immunity extended to the selection and appointment of members of the Board. He did however agree the Claimant would have been unable to challenge the Board's decision, had it given a ruling because 'it would have been subject to the immunity so clearly articulated in the judgment of Auld LJ'.
26. Holman J at paragraph 125 took the view that had the Board been asked to give a ruling:

"… unquestionably their ruling would have protected, not just them but also the Commissioner, by reason of immunity."

27. In Marrinan v Vibart, 1963 1 QB 258 the plaintiff, a disbarred barrister, had brought an action against two police officers for conspiracy in relation, inter alia to evidence given by them against him at a trial at the Central Criminal Court, and to an inquiry before the Benchers of Lincoln's Inn. Diplock LJ considered the submission made on behalf of the plaintiff that although statements of the police officers made for the purposes of the hearings were absolutely privileged, he was not relying upon the statements as constituting the cause of action, but upon the antecedent agreement to be inferred from the statements that they had conspired together to injure the plaintiff. Diplock L J had this to say:

"…It follows, therefore, if he is right, that an action will lie against witnesses, counsel, juries, the judges of this court itself, for actions which they have taken in the course of the administration of justice during the hearing of cases, provided that that action was taken with the primary intention of injuring the plaintiff. It matters not, therefore, so far as the cause of action is concerned, whether the evidence which witnesses are alleged to have given should be true or false. Similarly, an action would lie against a jury … for a verdict of Guilty even though that verdict was justified by the facts, provided that the dominant motive of the jury had been to injure the plaintiff. Similarly …, an action might lie against the members of this court in respect of a judgment which they delivered – as this one will be – expressing views adverse to one of the parties in the proceedings."

28. The Court of Appeal emphatically rejected the suggestion that such a claim could be brought. The rule of public policy giving immunity from suit to witnesses not could be circumvented by bringing a claim for conspiracy. It is, notable that Diplock LJ referred specifically to judgments of the Court, as being immune from challenge.
29. I now need to consider the relevant statute. Prior to the Police Reform at 2002 Police Officers did not have the benefit of protection granted to 'whistleblowers' afforded by Parts 4A, 5 and 10 of the Employment Rights Act 1996. Section 37(1) of the Police Reform Act inserted a new Section 43KA which extended various protections to Police Officers set out in Section 47B (The right not to be subjected to detriment for making a protected disclosure), Section 48 (The rights to complain to the Employment Tribunal if subjected to a detriment) and Section 49 which deals with remedies. Police Officers are also now able to make a claim for automatically unfair dismissal if dismissal by reason of having made a protected disclosure under Section 103A.
30. I also refer to Section 200 of the Employment Rights Act which lists a number of sections specifically not applicable to Police Constables. Mr John Davies QC who appeared on behalf of the Claimant submitted that the list of exclusions was exhaustive and I am inclined to agree, although as this has not been the subject of any argument I say no more about it.
31. The Claimant's case is that the disclosures fell within Section 43B(1)(a),(b) and (d)

"[43B Disclosures qualifying for protection

(1) In this Part a "qualifying disclosure" means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following -

(a) that a criminal offence has been committed, is being committed or is likely to be committed,

(b) that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject,

(d) that the health or safety of any individual has been, is being or is likely to be endangered,"

32. Mr Davies also submits that the disclosures were made to prescribed persons under Section 43C:

"[43C Disclosure to employer or other responsible person

(1) A qualifying disclosure is made in accordance with this section if the worker makes the disclosure in good faith –

(a) to his employer, or

(b) where the worker reasonably believes that the relevant failure relates solely or mainly to –

(i) the conduct of a person other than his employer, or

(ii) any other matter for which a person other than his employer has legal responsibility,

to that other person.

(2) A worker who, in accordance with a procedure whose use by him is authorised by his employer, makes a qualifying disclosure to a person other than his employer, is to be treated for the purposes of this Part is making the qualifying disclosure to his employer.]"

It is worth noting in passing that a Police Constable has an obligation to disclose wrongdoing of fellow officers under the Police Code of Conduct. If the Claimant's case is correct he may well have made a protected disclosure.

33. The main thrust of the Claimant's submissions to the Employment Tribunal as before us was that if the right to make claims for unfair dismissal and seek other remedies under Section 49 of the Employment Rights Act is excluded by the doctrine of judicial immunity of a Police Disciplinary Board, valuable protection afforded to police officers would be circumvented and rendered nugatory. The Respondent conceded that the bringing of disciplinary proceedings as well as the action of the Chief Constable on appeal or review could be subject to complaint, but complaint could not be made about the findings and decision of the Police Complaint Board by reason of its immunity.

The Decision of the Employment Tribunal

34. The Employment Tribunal concluded, having regard to the decision in Heath v Commissioner of Police for the Metropolis that the decisions and proceedings of a Police Complaints Board were immune from suit. The Chairman had this to say at paragraph 16:

"(16) I can think of nothing which is more likely to be seen as an attack on the integrity of the judicial process and hence the public interest than permitting a situation where members of the Police Disciplinary Board, in the pursuit of a quasi judicial function, can be required to attend at the Tribunal and be answerable not only for their conduct, but more significantly for the decision that they have arrived at. It is, to me, inconceivable that a Judge can behave entirely unreasonably during the course of proceedings and is protected from civil proceedings, but that the decision that he reaches at the conclusion of the proceedings can be so attacked. That cannot, in my view, be right.

(17) Accordingly, I conclude that the claimant cannot be permitted to attack the Police Disciplinary Board in relation either to their proceedings or in relation to their decision. I acknowledge the force of Mr Davis's argument that if, in reality, a decision to dismiss a police officer will always be made by a Police Disciplinary Board, by providing that board with immunity from suit in this way the rights provided by s43KA are significantly eroded. I can, however, see no way that I could conclude that I was not bound by the clearest of decisions of the Court of Appeal."

The Chairman, however, went on to find the immunity of the Board did not mean that the Claimant was of necessity prevented from pursuing his dismissal claim. The Chief Constable's actions were not immune from suit and if the Claimant could demonstrate that the Chief Constable's decision was made by reason of the fact that the Claimant had made a protected disclosure the dismissal claim might still be able to succeed. It was also conceded by the Respondent that the decision to bring the disciplinary charges could itself be the subject of the application.

The Claimant's submissions

35. Mr Davies submitted that his complaints related to the result rather than the process. He submitted that nothing in the decision in Heath v Commission of Police precluded the Employment Tribunal from having regard to the decision of the Police Disciplinary Board. The decision in Heath was limited to imposing a prohibition on complaints arising out of the procedure and conduct of the disciplinary panel.
36. Mr Davies referred to the specific facts and complaints made by the Claimant in that case to which I have already referred. Mr Davies went on to submit that the Court of Appeal did not consider Section 43KL of the Employment Rights Act which was not in force as at date of the hearing, although it appears to have come into force at the time the Judgment was handed down on 20 July. However, the Court of Appeal, therefore, was not considering any issue relating to 'whistleblowing'. Mr Davies submitted that the Employment Tribunal could only determine whether or not the Claimant had in fact been dismissed for 'whistleblowing' if it could investigate the reason for his dismissal and that would entail investigating the Board's decision. If the Board's decision were to be accorded immunity that would conflict with the words of the statute protecting a claimant from dismissal by reason of having made a protected disclosure. Mr Davies made clear that the facts found by the Police Disciplinary Board were not accepted and he would wish to re-open these before the Employment Tribunal. If it was open to the Chief Constable to re-open the facts on appeal or review the Employment Tribunal similarly should be entitled to re-open the facts.
37. The order of the Employment Tribunal was, it was submitted anomalous. The Claimant's complaints about the decision to commence disciplinary proceedings and the decision of the Chief Constable to dismiss were justiciable so there was no reason to distinguish between the decision of the Police Disciplinary Board and that of the Chief Constable. The effect of the distinction was absurd and resulted in significantly limiting the protection afforded to a 'whistleblowing' Police Constable. Mr Davies pointed out that in the case of a private employer setting up a domestic tribunal to deal with appeals, decisions of that tribunal would always be open to review. That was a further reason for limiting the scope of the immunity so far as concerned the Police Disciplinary Board.
38. The decision in Heath in relation to the scope of immunity granted could be reconciled with a Police Constable's rights to be protected for making protected disclosures to judicial tribunals by limiting the immunity to procedural matters rather than the actual decision. Mr Davies, however, made clear that he was making no concession as to immunity in procedural matters or conduct in the light of Section 37(1) of the Police Reform Act. These issues do not arise for determination today.

The Respondent's submissions

39. On behalf of the Respondent Mr Short submitted that the protection offered by the immunity determined in Heath v Commissioner of Police for the Metropolis was not limited to the comments and conduct of the Board members during the course of the hearing but included the decisions made at the hearing. He referred to the passages I have already referred to in which Auld LJ made clear that the immunity extended to protection from collateral attacks and to words spoken by members of a judicial or quasi-judicial body so as to include its decisions. He referred to the specific reference to 'rulings' by Auld LJ at paragraph 101 and to the judgment of Diplock LJ in Marrinan v Vibart to which I have referred.
40. Mr Short submitted that paragraphs 11 and 15 of the grounds of complaint offended the rule that prohibited the Claimant from launching a collateral attack upon the Board's decision. Ground 11 dealt with findings of the Police Disciplinary Board in paragraph 15 in so far as it alleged that dismissal by the Police Disciplinary Board was automatically unfair by reason of the Claimant having made a protected disclosure.
41. There was simply no basis for excluding the decision itself from the scope of the immunity afforded to quasi-judicial or judicial bodies. If the decision itself were excluded from the immunity, the integrity of the proceedings would not be protected and collateral attacks could be made against decisions of judicial and quasi-judicial bodies. The avoidance of such collateral attack was fundamental to the immunity rule. Mr Short submitted that it was difficult to see why or how distinction could be made between procedural decisions, which were protected, and other decisions which Mr Davies submitted, were not, particularly where those decisions might effectively determine the outcome of the hearing.
42. Mr Short accepted that there were anomalies, submitted out by Mr Davies, but that the Claimant could not draw much comfort from the fact that he could challenge some points of the process and not others, as all parts of the process are open to challenge, albeit in different ways.

Conclusions

43. I have no doubt that the scope of immunity from suit afforded to judicial and quasi-judicial bodies extends to their decisions. If this were not so the result would be absurd and there would be no end to collateral challenges to their decisions. Nothing, in my opinion in the provisions inserted into the Employment Rights Act 1996 by Section 37(1) of the Police Reform Act suggests that the immunity from suit afforded to quasi-judicial bodies is somehow affected. It is instructive to have regard to what Rimer J said in the Employment Appeal Tribunal in Heath v Commission of Police for the Metropolis, cited by Auld LJ at paragraph 8:

"Mr Sethi [counsel for Miss Heath] made the point that the Sex Discrimination Act 1975 says nothing to the effect that tribunals will enjoy any such immunity in respect of claims brought under that Act in relation to the manner in which they conduct their hearings. We regard that argument as carrying no weight. The rule is a longstanding one of public policy which applies in respect of all actions sought to be founded on the alleged acts or omissions of the participants in proceedings to which the rule applies, and Parliament can be taken to have been aware of it when enacting the 1975 Act."

44. What Rimer J had to say about this Sex Discrimination Act, in my opinion applies just as much to Section 37(1) of the Police Reform Act.
45. I recognise that there are anomalies in the present case because the Claimant is able to challenge in the Employment Tribunal the decision to commence disciplinary proceedings and the decision of the Chief Constable to dismiss the Claimant. It is further anomalous that if a Police Constable does not appeal from a decision of the Police Disciplinary Board, if the Respondent is correct, there is no right to go to the Employment Tribunal, in relation to the decision to dismiss, but if he appeals to the Chief Constable he can commence tribunal proceedings. However, even if there are anomalies this is not a case in which the Claimant is without remedies. He has his remedy in the Employment Tribunal in relation to the decision to prosecute and also in relation to the acts of the Chief Constable. So far as the Police Disciplinary Board is concerned he has his public law remedies. I accept the submission of Mr Short that all parts of the process are open to challenge albeit in different ways. I am unable to accept Mr Davies' point that as a 'private' Tribunal's decisions are open to review so one should not extend the immunity of quasi-judicial bodies to include their decisions. However, the Police Disciplinary Board for good reason is a more formal body than a private tribunal and is both established by statute and recognised by authority binding on me as having the status of a judicial body for the purposes of its immunity. It seems to me that once it is accepted that the Police Disciplinary Board is a judicial or quasi-judicial body, then public policy prevents a challenge to its decisions either directly or by collateral attack. As I have said I have seen nothing in the wording of Section 37(1) of the Police Reform Act that removes that protection. The immunity, as I have said does not remove the Claimant's rights to challenge the decision to prosecute him and the decision to dismiss ultimately taken by the Chief Constable on review.
46. I am unable to see how one can sensibly limit immunity to procedural matters and not hold that the immunity covers the decision itself, especially as the decision is protected as much as the procedure by immunity from suit. The Claimant as I have said on several occasions is not without rights.
47. I am unable to accept the submission that the immunity would conflict with the words of the Act; neither am I satisfied that the Employment Tribunal can only determine whether or not the Claimant was dismissed for 'whistleblowing' if it investigates the decision of the Police Disciplinary Board.
48. The Chairman made clear that if the Claimant can demonstrate that the decision of the Chief Constable was made by reason of the fact that the Claimant had made a protected disclosure the dismissal claim may still be able to succeed.