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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> P v Commissioner of Police of the Metropolis [2017] UKSC 65 (25 October 2017) URL: https://www.bailii.org/uk/cases/UKSC/2017/65.html Cite as: [2018] IRLR 66, [2018] ICR 560, [2017] UKSC 65, [2017] WLR(D) 696, [2018] 1 All ER 1011, [2018] 2 CMLR 4 |
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[2017] UKSC 65
On appeal from: [2016] EWCA Civ 2
JUDGMENT
P
(Appellant)
v
Commissioner
of
Police
of the
Metropolis
(Respondent)
before
Lady Hale
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
JUDGMENT GIVEN ON
25 October 2017
Heard on 3 and 4 May 2017
Appellant Karon Monaghan QC Edward Kemp (Instructed by Slater & Gordon (UK) LLP) |
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Respondent Thomas Linden QC Jesse Crozier (Instructed by
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Intervener (1st)
(Instructed by
Equality and Human Rights ![]() |
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Interveners (2nd) (written submissions only) D |
(1) Equality and Human Rights Commission
(2) The Society of Black Lawyers, Operation Black
Vote
Association of Muslim Lawyers,
NHS BME Network,
BARAC,
BLAKSOX,
The Runneymede Charitable Trust and
The National Black Police
Association
LORD REED: (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hughes agree)
1.
This appeal concerns the directly effective right of police
officers
under EU law to have the
principle
of equal treatment applied to them. The
question raised is whether the enforcement of that right by means of
proceedings
in the Employment Tribunal is barred by the
principle
of judicial
immunity, where the allegedly discriminatory conduct is that of
persons
conducting a misconduct hearing.
The facts
2.
The material facts are in short compass. The appellant was assaulted in
2010, while serving as a police
officer, and subsequently suffered
post-traumatic
stress disorder (“
PTSD”).
In 2011, she was involved in an
incident which led to her arrest. She asserted that her behaviour on that
occasion was related to her
PTSD.
After investigation, she was made the subject
of a disciplinary charge before a misconduct hearing constituted under the
Police
(Conduct) Regulations 2008 (SI 2008/2864) (“the 2008 Regulations”). There,
apart from one issue of fact which was resolved in her favour, she accepted
that she had been guilty of the misconduct alleged. She relied on her good
record as a
police
officer and her
PTSD
in mitigation. On 12 November 2012, the
persons
conducting the hearing (“the
panel”)
imposed the sanction of dismissal
without notice.
The proceedings
below
3.
The appellant appealed against her dismissal to the Police
Appeals
Tribunal, which could allow her appeal if it considered the disciplinary action
taken to be unreasonable. She also instituted
proceedings
against the
Commissioner
of
Police
of the
Metropolis
(“the
Commissioner”)
in an Employment
Tribunal under the Equality Act 2010 (“the 2010 Act”), in which she claimed
that the decision to dismiss her constituted discrimination arising from
disability and disability-related harassment, and was consequential upon a
failure to make reasonable adjustments. In response, the
Commissioner
contended
that the decision, and acts done by the
panel
in the course of the
proceedings,
were
protected
from challenge by the
principle
of judicial immunity. The appellant
indicated her intention to seek a stay of her claim before the Employment
Tribunal,
pending
the outcome of her appeal to the
Police
Appeals Tribunal,
subject to the outcome of a
pre-hearing
review. In the event, a final
determination was made by the
Police
Appeals Tribunal on 11 June 2013 that the
appeal would not
proceed.
4.
Following a pre-hearing
review, the Employment Tribunal struck out the
appellant’s claim on the basis that the
panel
was a judicial body, and that
since the appellant’s claim was to the effect that its decision and the
process
by which it was reached were unlawfully discriminatory, the claim was barred by
judicial immunity. An appeal against that decision was dismissed by the
Employment Appeal Tribunal, applying the decision of the Court of Appeal in Heath
v
Commissioner
of
Police
of the
Metropolis
[2004] EWCA Civ 943; [2005] ICR 329. A further appeal was dismissed by the Court of Appeal on the basis that
the
present
case was indistinguishable from Heath: [2016] EWCA Civ 2;
[2016] IRLR 301. Laws LJ, giving a judgment with which the other members of the
court agreed, remarked:
“However I have been troubled by a
particular
feature of the case. If I am right, it would appear that claims of
discriminatory dismissal brought by
police
officers, where the effective dismissing
agent is a disciplinary
panel
such as was convened here, will not be
viable
in
the Employment Tribunals; yet
Parliament
has legislated to allow such claims to
be made.” (
para
24)
The EU dimension
5.
The rights on which the appellant relies are directly effective rights
under EU law. Council Directive 2000/78/EC (“the Framework Directive”) provides
in article 1 that its
purpose
is to lay down a general framework for combating
discrimination on the grounds of religion or belief, disability, age or sexual
orientation as regards employment and occupation, with a
view
to
putting
into
effect in the member states the
principle
of equal treatment.
6.
That principle
is defined in article 2(1) as meaning that there shall be
no direct or indirect discrimination whatsoever on any of the grounds referred
to in article 1. Article 2(2) defines direct and indirect discrimination.
Article 2(3)
provides
that harassment shall be deemed to be a form of
discrimination. Article 2(5)
provides
that the Directive shall be without
prejudice
to measures laid down by national law which, in a democratic society,
are necessary for
public
security, for the maintenance of
public
order and the
prevention
of criminal offences, for the
protection
of health and for the
protection
of the rights and freedoms of others. It has not been suggested that
article 2(5) has any relevance in the
present
context. Article 5
provides
that
compliance with the
principle
of equal treatment also requires reasonable
accommodation to be
provided
in relation to
persons
with disabilities.
7.
In relation to the scope of the Directive, article 3(1) provides
that,
within the limits of the areas of competence conferred on the Community, the Directive
shall apply to “all
persons,
as regards both the
public
and
private
sectors,
including
public
bodies”, in relation to a
variety
of matters relating to
employment and occupations, including “employment and working conditions,
including dismissals”. Article 3(4)
permits
member states to exclude their armed
forces from the application of the Directive, in so far as it relates to
discrimination on the grounds of disability and age. There is no corresponding
provision
in relation to
police
forces.
8.
In relation to remedies and enforcement, article 9(1) requires member
states to “ensure that judicial and/or administrative procedures
... for the
enforcement of obligations under this Directive are available to all
persons
who consider themselves wronged by failure to apply the
principle
of equal
treatment to them”. Article 17 requires member states to lay down the rules on
sanctions applicable to infringements of the national
provisions
adopted
pursuant
to the Directive, and to take all measures necessary to ensure that
they are applied. The sanctions may comprise the
payment
of compensation to the
victim,
and must be “effective,
proportionate
and dissuasive”.
The Equality Act 2010
9.
The Framework Directive is currently implemented in domestic law by the
2010 Act. In Part
2 of the Act, section 4 identifies
protected
characteristics,
including disability as defined by section 6. Section 13 defines discrimination
as including the less favourable treatment of a
person
because of a
protected
characteristic. Sections 15 and 19 make further
provision
in relation to
discrimination against disabled
persons.
Sections 20 to 22 make
provision
in
relation to the duty to make reasonable adjustments for disabled
persons.
Section 26 makes
provision
in relation to harassment related to a
protected
characteristic.
10.
In Part
5 of the Act, section 39
provides
that an employer (A) must not
discriminate against a
person
(B) in a
variety
of ways, including by dismissing
B. It also
provides
that a duty to make reasonable adjustments applies to an
employer. Section 40
provides
that an employer (A) must not, in relation to
employment by A, harass a
person
(B) who is an employee of A’s.
11.
Special provision
is made in relation to
police
officers by sections 42
and 43. In
particular,
section 42(1)
provides
that, for the
purposes
of
Part
5
of the Act, holding the office of constable is to be treated as employment by
the chief officer in respect of any act done by the chief officer in relation
to a constable, and as employment by the responsible authority in respect of
any act done by the authority in relation to a constable. That
provision
is
necessary because, at common law, a
police
officer is not an employee but the
holder of an office. The expressions “chief officer” and “responsible authority”
are defined by section 43(2) and (3) respectively. In relation to officers in
the
Metropolitan
Police,
the former expression refers to the
Commissioner,
and
the latter expression refers to the Mayor’s Office for
Policing
and Crime.
13.
Ancillary provisions
are set out in
Part
8 of the 2010 Act. Section 109
is concerned with the liability of employers and
principals.
Subsection (1)
provides
that anything done by a
person
(A) in the course of A’s employment
must be treated as also done by the employer. Subsection (2)
provides
that
anything done by an agent for a
principal,
with the authority of the
principal,
must be treated as also done by the
principal.
14.
Section 120 confers jurisdiction on an Employment Tribunal to determine
complaints relating to contraventions of Part
5. Where a tribunal finds a
contravention, it can make a declaration, order the
payment
of compensation, or
make appropriate recommendations: section 124(2). It can thus
provide
a remedy,
in cases of dismissal or other disciplinary action, without necessarily
affecting the dismissal or other action itself.
Police misconduct panels
15.
Police
misconduct
panels
are established under regulations made by the
Secretary of State in the exercise of
powers
conferred by the
Police
Act 1996.
The Regulations which were in force at the time when section 64A of the
Disability Discrimination Act 1995 was introduced left the final decision in
cases of dismissal to the chief officer or the
police
authority. That
position
was altered by the 2008 Regulations, which were in force at the time of the
appellant’s dismissal. Those Regulations were themselves revoked and replaced
by the
Police
(Conduct) Regulations 2012 (SI 2012/2632) (“the 2012 Regulations”).
The latter Regulations, as amended by the
Police
(Conduct) (Amendment)
Regulations 2015 (SI 2015/626), are broadly (but not entirely) in similar
terms.
16.
The Schedule to the 2008 Regulations sets out the standards of
professional
behaviour expected of
police
officers. Regulation 3(1) defines
misconduct as a breach of the standards set out in Schedule 1, and gross
misconduct as a breach so serious that dismissal would be justified. By
regulation 5, the Regulations apply where an allegation comes to the attention
of an appropriate authority which indicates that the conduct of a
police
officer may amount to misconduct or gross misconduct. In terms of regulation
3(1), the “appropriate authority”, where the officer concerned is a senior
officer (defined as meaning an officer holding a rank above that of chief
superintendent) is the
police
authority, and in any other case is the chief
officer. In the
present
case, the appropriate authority was the chief officer.
17.
Ignoring immaterial details, the procedure
after an allegation comes to
the attention of the appropriate authority can be summarised as follows. The
appropriate authority is required by regulation 12(1) to assess whether the
conduct alleged, if
proved,
would amount to misconduct or gross misconduct. If,
as in the
present
case, the appropriate authority determines that it would
amount to gross misconduct, the matter then has to be investigated: regulation
12(4). The next stage is for the appropriate authority to appoint an
investigator in accordance with regulation 13, and for an investigation to be
carried out in accordance with regulations 14 to 18. The next stage is for the
appropriate authority, on receipt of the investigator’s report, to determine
whether the officer concerned has a case to answer in respect of misconduct or
gross misconduct, in accordance with regulation 19. Where, as in the
present
case, the appropriate authority determines that there is a case to answer in
respect of gross misconduct, it is required under regulation 19(4) to refer the
case to a misconduct hearing, defined by regulation 3(1) as a hearing at which
the officer may be dealt with by disciplinary action up to and including
dismissal. Under regulation 21, the officer is then entitled to be
provided
by
the appropriate authority with written notice of the conduct that is the
subject matter of the case, and how that conduct is alleged to amount to gross
misconduct. Subject to the “harm test” explained in regulation 4, the officer
is also entitled to a copy of the investigator’s report, or such
parts
of it as
refer to him, together with any document referred to in the report which
relates to him. Under regulation 22, the officer is required to
provide
to the
appropriate authority written notice of any allegations which he disputes and
any arguments on
points
of law which he wishes to be considered by the
persons
conducting the misconduct hearing, together with a copy of any document relied
on. Lists of
proposed
witnesses also have to be exchanged: regulation 22(4).
18.
The form of the misconduct hearing depends on the rank of the officer
concerned. Where, as in the present
case, the officer is not a senior officer,
regulation 25(4) requires the hearing to be conducted by a
panel
of three
persons
appointed by the appropriate authority, one of whom is to be a
police
officer, another of whom is to be a human resources
professional,
and the third
of whom is to be selected from a list of candidates maintained by the
authority. One of the three (either a senior
police
officer or a senior human
resources
professional)
is to chair the hearing.
19.
Both the officer concerned and the appropriate authority have the right
to be legally represented at the hearing: regulation 7(1) and (4). The person
chairing the hearing has to determine which, if any, of the
proposed
witnesses
should attend the hearing and should give evidence at it: regulation 23(2) and
(3). He or she has no
power
to compel the attendance of witnesses, although he
or she can cause a witness who is a
police
officer to be ordered to attend:
regulation 23(3). Nor can he or she administer an oath. Under regulation 28,
the members of the
panel
are to be
provided
with copies of the documents
provided
to or by the officer under regulations 21 and 22 respectively, and
also, where the officer disputes any
part
of the case against him, any other
documents which, in the opinion of the appropriate authority, should be
considered. Copies of documents in the latter category have also to be
provided
to the officer. Subject to specified exceptions, the hearing is to be in
private:
regulation 32(1).
20.
Subject to specified requirements, the procedure
at the hearing is to be
determined by the
person
chairing it: regulation 34(1). The
person
representing
the officer is entitled to address the hearing and to
put
questions to
witnesses, subject to the right of the
person
chairing the hearing to determine
whether any question should or should not be
put.
21.
At the conclusion of the hearing, the persons
conducting the hearing
have to decide whether the officer’s conduct amounts to misconduct, gross
misconduct or neither: regulation 34(13). Where, as in the
present
case, they
find that the conduct amounts to gross misconduct, they may impose any of the
disciplinary actions specified in regulation 35(2)(b), ranging from management
advice to dismissal without notice. Where, as in the
present
case, there is a
finding of gross misconduct and the
persons
conducting the hearing decide that
the officer should be dismissed, regulation 35(9) directs that the dismissal
shall be without notice.
22.
An officer other than a senior officer has a right of appeal to the
Police
Appeals Tribunal against the
panel’s
finding of misconduct or gross
misconduct, or against the disciplinary action taken by the
panel:
regulation
36(2) of the 2008 Regulations, read together with regulation 4 of the
Police
Appeals Tribunals Rules 2008 (SI 2008/2863) (“the 2008 Rules”), subsequently
replaced by the broadly similar
Police
Appeals Tribunals Rules 2012 (SI
2012/2630). The grounds of appeal were specified at the material time in
regulation 4(4) of the 2008 Rules.
Put
shortly, they are unreasonableness,
fresh evidence, and breach of the statutory
procedures
or other unfairness.
Although it is conceded that it might be
possible
to bring a complaint of
discriminatory behaviour under the last of these headings, the tribunal does
not
possess
either the same expertise in relation to equal treatment, or the
same
powers,
as an Employment Tribunal. In
particular,
it has no
power
to make
declarations, order the
payment
of compensation, or make appropriate
recommendations. Its only
power
is either to allow or dismiss the appeal
against the
panel’s
finding or the disciplinary action taken. Neither of those
forms of relief will necessarily be an appropriate remedy in all cases of
discrimination.
Heath v
Commissioner
of
Police
of the
Metropolis
23.
The case of Heath concerned events pre-dating
the Framework
Directive. A civilian employee of a
police
force brought a claim in an
Employment Tribunal under the Sex Discrimination Act 1975 in relation to the
conduct of members of a disciplinary board constituted under the
Police
(Discipline) Regulations 1985 (SI 1985/518). She complained that, as a witness
in
proceedings
before the board, she had been treated by its members in a
manner which amounted to sex discrimination. The tribunal held that it had no
jurisdiction, on the basis that the members of the board enjoyed judicial
immunity. The
proceedings
before the tribunal and the Employment Appeal
Tribunal appear to have been conducted without any reference to EU law, but
before the Court of Appeal reliance was
placed
on article 6 of the Equal
Treatment Directive, Council Directive 76/207/EEC.
24.
The Court of Appeal accepted that the members of the disciplinary board
enjoyed judicial immunity at common law. It is unnecessary for this court to
consider the correctness or otherwise of that conclusion, or to consider the
issue which divided the Court of Appeal, namely whether the immunity extended
to the Commissioner’s
selection of the membership of the board.
25.
The issues arising in relation to EU law were considered by Auld LJ in a
judgment with which, in relation to this issue, the other members of the court
agreed. He noted that article 1 of the Equal Treatment Directive required
member states to take measures to implement the principle
of equal treatment
for men and women in relation to
various
stages of employment, including
working conditions. Article 5
provided
that application of the
principle
of
equal treatment with regard to working conditions meant that men and women
should be guaranteed the same conditions. Article 5 also required member states
to take the measures necessary to ensure that any laws, regulations and
administrative
provisions
contrary to the
principle
of equal treatment should
be abolished. Article 6 required member states to introduce measures enabling
the
principle
of equal treatment to be relied on before national courts.
26.
Auld LJ did not address the question whether the discrimination alleged
fell within the scope of the Directive, but identified the first matter as
being whether and to what extent the common law rule of judicial immunity
should be governed by the Directive in respect of claims made under the 1975
Act. In that regard, Auld LJ considered it important not to confuse procedural
or jurisdictional qualifications, such as judicial immunity, with domestic
provisions
which operated to deprive a successful claimant in respect of an EU
right of his or her full and appropriate remedy, such as the cap on
compensation considered in Marshall
v
Southampton and South West Hampshire
Health Authority (Teaching) (No 2) (Case C-271/91) [1994] QB 126. If the Directive
were to displace judicial immunity, it would follow, so it was said, that it
should operate so as to disapply other similar rules, such as sovereign
immunity, res judicata, abuse of
process,
compromise of claims and estoppels.
This was regarded as an extravagant
proposition.
In Auld LJ’s
view,
the terms
of the Directive allowed of qualification where member states, within the
margin of their appreciation, considered it necessary. The eradication of
unlawful discrimination was not of such overriding importance that it should
hold sway over other fundamental norms of our law.
Analysis
27.
In a case where directly effective EU rights are in issue, EU law must
be the starting point
of the analysis. It may also be the finishing
point,
since it takes
priority
over domestic law in accordance with the
provisions
of
the European Communities Act 1972.
28.
The Framework Directive confers on all persons,
including
police
officers, a directly effective right to be treated in accordance with the
principle
of equal treatment in relation to employment and working conditions,
including dismissals: article 3(1)(c). That right is subject to specified
exceptions and qualifications, none of which is applicable to the
present
case.
The United Kingdom is obliged, under article 9(1), to ensure that judicial and/or
administrative
procedures
are available to all
persons
who consider themselves
wronged by failure to apply the
principle
of equal treatment to them. Under
article 17, sanctions which are effective,
proportionate
and dissuasive must be
applied. The
procedures
under national law must also comply with the general
principles
of effectiveness and equivalence, and with the right to an effective remedy
under article 47 of the Charter of Fundamental Rights of the European Union.
29.
The principle
of equivalence entails that
police
officers must have the
right to bring claims of treatment contrary to the Directive before Employment
Tribunals, since those tribunals are the specialist forum for analogous claims
of discriminatory treatment under our domestic law. They are expert in the
assessment of claims of discriminatory treatment, and have the
power
to award a
range of remedies including the
payment
of compensation, even in cases where
the dismissal or other disciplinary action itself stands. They therefore fulfil
the requirements of the
principle
of effectiveness. To leave
police
officers
with only a right of appeal to the
Police
Appeals Tribunal would not comply
either with the
principle
of equivalence, since analogous complaints under
domestic law can be made to an Employment Tribunal, nor with the
principle
of
effectiveness, since (for example) the
Police
Appeals Tribunal cannot grant any
remedy in cases where the discriminatory conduct is not such as to
vitiate
the
decision of the misconduct
panel.
30.
There can be no question of the United Kingdom being entitled to deny
police
officers an effective and equivalent remedy, where their rights under
the Directive have been infringed, as a matter falling within a national margin
of appreciation. Nor, indeed, is it suggested that there could be. On the
contrary, the right not to be discriminated against on grounds including
disability is a fundamental right in EU law,
protected
by article 21(1) of the
Charter. It follows that, even if it is designed to
protect
the officer under
investigation, the creation of a statutory
process
which entrusts disciplinary
functions in relation to
police
officers to
persons
whose conduct might
arguably attract judicial immunity under domestic law cannot have the effect of
barring complaints by the officers to an Employment Tribunal that they have
been treated by those
persons
in a manner which is contrary to the Directive.
National rules in relation to judicial immunity, like other national rules, can
be applied in accordance with EU law only in so far as they are consistent with
EU law: see, for example, Köbler
v
Austria (Case C-224/01) [2004] QB 848; [2003] ECR I-10239, and
Commission
v
Italy (Case C-379/10)
[2011] ECR I-180. The reasoning of the Court of Appeal in Heath, in
relation to EU law, cannot therefore be regarded as correct.
31.
In the 2010 Act, Parliament
sought to implement the Directive
specifically in relation to
police
officers, as Laws LJ noted in the Court of
Appeal. As explained earlier, section 42(1) deems a constable to be the
employee of the chief officer for the
purposes
of
Part
5 of the Act, in
relation to any act done by the chief officer, and the employee of the
responsible authority, in relation to any act done by that authority. Section
120 confers jurisdiction on an Employment Tribunal to determine any complaints
relating to contraventions of
Part
5. Those
provisions
plainly
confer on
police
constables the right to bring
proceedings
before employment tribunals in order
to challenge discrimination by chief officers and responsible authorities in
relation to employment and working conditions, including dismissals. It was
presumably
envisaged by
Parliament
that the exercise of disciplinary functions
in relation to
police
officers would fall within the scope of those
provisions.
That is indeed the case in relation to senior officers, under regulation 34(1)
of the 2012 Regulations, and
probationary
constables, under regulation 13 of
the
Police
Regulations 2003 (SI 2003/527).
32.
The problem
is that the disciplinary functions in relation to
police
officers who have completed their
period
of
probation,
other than senior
officers, are entrusted under secondary legislation to
panels;
and the exercise
of those functions by a
panel
is not an act done by either the chief officer or
the responsible authority. Nor can the exercise of those functions generally be
regarded as something done by an employee of the chief officer or of the
responsible authority in the course of his employment, within the meaning of
section 109(1), bearing in mind that the
panel
exercises its most significant
functions collectively, and that, at least, those of its members who are
police
officers will not be employees. Nor can the
panel
be regarded as exercising its
disciplinary functions as the agent of the chief officer or the responsible
authority, within the meaning of section 109(2): under the 2008 Regulations,
the relevant
powers
are conferred directly on the
panel
in its own right. The
consequence is that, if section 42(1) is read literally, it is deprived of much
of its
practical
utility, and it fails fully to implement the Directive,
contrary to its
purpose.
33.
The way to resolve the problem
is to interpret section 42(1) of the 2010
Act as applying to the exercise of disciplinary functions by misconduct
panels
in relation to
police
constables. This runs with the grain of the legislation,
and is warranted under EU law, as given domestic effect by the 1972 Act, in
accordance with such cases as Marleasing SA
v
La Comercial Internacional de
Alimentacion SA (Case C-106/89) [1990] ECR I-4135. In
particular,
section 42(1) can be interpreted conformably with the Directive if it is read
as if certain additional words (italicised in the following
version)
were
present:
“(1) For the purposes
of this
Part,
holding the office of constable is to be treated as employment -
(a) by the chief officer,
in respect of any act done by the chief officer or (so far as such
acts fall within the scope of the Framework Directive) by persons
conducting a
misconduct meeting or misconduct hearing in relation to a constable or
appointment to the office of constable;
(b) by the responsible authority, in respect of any act done by the authority in relation to a constable or appointment to the office of constable.”
So interpreted, the Act overrides, by force of statute,
any bar to the bringing of complaints under the Directive against the chief
officer which might otherwise arise by reason of any judicial immunity
attaching to the panel
under the common law.
34.
It should be emphasised that this conforming interpretation has to be
understood broadly: the court is not amending the legislation, and the
italicised words are not to be treated as though they had been enacted. The
expressions “misconduct meeting” and “misconduct hearing”, for example, have
not been defined by reference to the relevant regulations. Nor is the use of
those expressions intended to exclude the adoption of a similar approach in
relation to other types of panel
if that is necessary in order to comply with
the Directive. The italicised words are merely intended to indicate how section
42(1) should be interpreted in a case such as the
present,
in order to avoid a
violation
of EU law.
Conclusion
35.
For these reasons, I would hold that the reasoning in Heath v
Commissioner
of
Police
of the
Metropolis
in relation to EU law was unsound,
allow the appeal, and remit the appellant’s case to the Employment Tribunal.
LORD HUGHES:
36.
For my part
I agree with the judgment of Lord Reed.
37.
I add only that the principle
of judicial immunity serves a legitimate
end and generally achieves a
proportionate
and useful
purpose.
It exists for
the
protection
not only of tribunal members, but also of witnesses, against
further litigation inspired by what may well be deep disappointment on the
part
of those who have not been successful in contested
proceedings
before the
tribunal. It also
prevents
most collateral challenges to the decisions of
tribunals which have been set up, usually by legislation, with the task of
making a final decision. The
proliferation
of litigation is not generally in
the
public
interest, which is best served by a single, final, decision after
due
process,
appealable in the event of demonstrated error of law or
principle.
38.
For the reasons so clearly explained by Lord Reed, section 42 of the
Equality Act (like its predecessor),
conformably with the Framework Directive,
is
plainly
meant to
provide
police
constables with the right to complain to an
Employment Tribunal of discrimination, and must be construed in the manner
which he has set out. It remains the consequence that in relation to
discrimination there exists considerable
potential
for
parallel
or collateral
proceedings
in an Employment Tribunal and the statutory
Police
Appeals
Tribunal. The former can grant relief relating to discrimination, but cannot
direct an alteration to the outcome of the disciplinary
proceedings.
The latter
cannot grant discrimination-related relief, and does not have the expertise of
an Employment Tribunal in that area, although it can and should consider any
suggested discrimination when hearing an appeal against that outcome. The inconvenience
is well illustrated by the
present
case, in which
P’s
complaint of
discrimination was explicitly limited by her to the outcome of the disciplinary
proceedings.
Her case, as set out in her witness statement supporting her
Employment Tribunal application, was expressly that her mitigation had not, in
breach of the duty to avoid discrimination, been accepted when it should have
been. She said this:
“I am not complaining about anything which was said or done during the course of the disciplinary hearing in November 2012; I am simply complaining that the wrong decision was reached by the MPS at the end of that hearing.”
39.
For the reasons which Lord Reed explains, this division of
justiciability is, in the present state of the legislation, unavoidable. It
might, however, usefully be considered in the event of any review of the
overall structure.