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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Chief Constable of Cumbria v. McGlennon [2002] UKEAT 10_01_1507 (15 July 2002) URL: https://www.bailii.org/uk/cases/UKEAT/2002/10_01_1507.html Cite as: [2002] UKEAT 10_01_1507, [2002] Po LR 202, [2002] ICR 1156, [2002] UKEAT 10_1_1507, [2002] Emp LR 1148 |
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At the Tribunal | |
On 4 February 2002 | |
Before
MR COMMISSIONER HOWELL QC
MR I EZEKIEL
MS G MILLS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR G POWELL (of Counsel) Instructed By: Mrs Margaret Longworth The Cumbria Police Force Carleton Hall Penrith Cumbria CA10 2AU |
For the Respondent | MR S SWEENEY (of Counsel) Instructed By: Ms R Buzzard Messrs Russell Jones & Walker Solicitors 4th Floor Earl Grey House Grey Street Newcastle Upon Tyne NE1 6EF |
MR COMMISSIONER HOWELL QC:
Introduction: the issues in the appeal
The facts
The tribunal decision
"Discussion took place re staffing levels at Millom. One officer has been seconded from Workington to Appleby Fair. On return from sick leave PC McGlennon will now be stationed at Whitehaven, this situation will be reviewed May/June 1999".
"28 … The applicant returned to work on 19 April 1999. We note that the decision to send the applicant to Whitehaven was made by Superintendent Garner. He has not given evidence to the Tribunal. There is confusion by the respondents as to exactly why the applicant was moved to Whitehaven. …
29 We find it quite extraordinary that no one at Whitehaven knew about the sex discrimination questionnaire. In fact we do not accept that to be the case. They must have known. It is not credible to suggest otherwise. This was an officer from the Whitehaven division. He had submitted a sex discrimination questionnaire to the force headquarters. To expect the Tribunal to accept that from 29 March 1999 until 13 May 1999, the date of Inspector Hall's note, that Whitehaven did not know that a questionnaire had been submitted by the applicant is just unbelievable. We are sure that the first thing headquarters did when they got the questionnaire was to raise it with Whitehaven. The applicant did a protected act by submitting the questionnaire. We accept that he was treated less favourably by his move from Egremont to Whitehaven. There was no need for that move. The explanation that it was for the applicant's welfare is not in our view made out. If this was correct the only people who knew that the move was for the applicant's welfare were those that made the decision. They did not communicate it to anyone else. We are satisfied that the applicant was moved from Egremont to Whitehaven so that he could be more closely monitored because he had submitted a questionnaire. The welfare reason was a later justification for the move. Because of the lack of explanation the move was considered to be some sort of disciplinary move against the applicant in that he had done something wrong in some way. People were questioning why he had been moved without explanation. We are satisfied this was less favourable treatment. We are satisfied that the less favourable treatment was because the applicant had submitted the questionnaire. …"
On that basis they held the Chief Constable liable for unlawful victimisation contrary to section 4 of the Act.
The law: jurisdiction issues
"17 Police
(1) For the purposes of this Part, the holding of the office of constable shall be treated as employment -
a) by the chief officer of police as respects any act done by him in relation to a constable or that office;
b) by the police authority as respects any act done by them in relation to a constable or that office."
There then follow special provisions about the extent to which police regulations may treat men and women differently in such matters as height or uniform requirements. Subsections (4) and (5) go on to provide for proceedings under the Act against the chief officer of police under subsection (1) to be brought against the person performing the functions of that office for the time being; and for the payment out of the police fund of any compensation, costs or expenses awarded against a chief officer in proceedings brought against him under the Act, or any sum required by him for the settlement of a claim under the Act, provided that the settlement is approved by the relevant police authority.
"41 Liability of employers and principals
(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
(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.
…"
No reliance was placed on Mr McGlennon's behalf on the next following section:
"42 Aiding unlawful acts"
(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description."
We think that an entirely correct concession by Mr Sweeney on the facts of this case.
"I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is of every Chief Constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. … The responsibility for law enforcement lies on him.";
and, in conjunction with that, the most basic centuries-old principle underlying the whole of the law of agency, that where a person does something through another, the act is seen in the eyes of the law as his own: qui per alium facit, per seipsum facere videtur: Co.Litt. s.433, 258a, Broom's Legal Maxims, 10th Edn, 558. In our judgment therefore the acts for which proceedings may be brought by a constable against the chief officer by virtue of section 17 include management decisions on posting such as those at issue in this case.
"Under the Bill and in general terms, it will no longer be possible for chief officers to discriminate between men and women in recruitment, postings, selection for training or promotion. In each case applicants will be considered solely on the basis of qualifications required for the particular post, and the best person, man or woman will be selected."
(Dr Shirley Summerskill, Under Secretary of State for the Home Department, 1974–5 HC Deb 5s Vol 893, col. 1487: see also Lord Harris of Greenwich, 1 July 1975 362 HL Deb col 100):
"Under the terms of the Bill, the police will have to consider applications for posts solely on the qualifications required for the service or for the particular post, and select the best one, man or woman."
" I agree that the effectiveness of the protection for constables is diminished if section 41 [sc. section 41(1)] does not apply … and if the deemed employer is only liable for acts done by him. But … it cannot properly be said that such a construction leaves section 17 without utility. Under section 13(3) of the 1996 Act the Chief Constable makes appointments and promotions to any rank below that of Assistant Chief Constable. Under section 69 of that Act he has wide powers in respect of complaints against officers … Under the Police Regulations 1995 he has power to appoint part-time officers. Under the Police Conduct Regulations he has the power to suspend officers … Under the Police Efficiency Regulations 1999 he acts as a reviewing body if a sanction for poor performance is imposed. No doubt he will be able to delegate some of the functions, but he may himself be liable under section 41(2) of the 1975 Act as principal."
The later references in paragraph 71 of the same judgment to the general principle that a constable in his normal public duties "is not the agent of the Chief Constable", and in the concurring judgments of Jonathan Parker LJ at paragraph 79 to "acts done by him" being "not capable … of including an act not done by him", and of Longmore LJ at paragraph 92 to Parliament not having intended to make a chief constable responsible for the acts of his subordinates, must in our judgment be read subject to the reservation thus made in paragraph 49 for acts within delegated authority, and cannot be taken as implying that it does not exist.
"The plaintiff in the present case could only bring herself within section 32(2) if she were able to prove that a police constable acted as he allegedly did on the express, or implied, authority of a senior officer. In which case the act precedent or consequent would then be treated as done by that superior officer as well as by the constable. She does not allege this."
Section 32(2) of the Race Relations Act 1976, to which Otton LJ was there referring, is the exact counterpart to section 41(2) of the Sex Discrimination Act 1975 with which we are concerned.
Original issues on the appeal
"We have to form a view that the female officers were preferred to the male officers. The preference arose because of the nature of the posting to Millom and its accepted disadvantages. It was easier to post a man".
Conclusion