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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Kent County Constabulary v Baskerville [2003] UKEAT 839_02_1404 (14 April 2003) URL: https://www.bailii.org/uk/cases/UKEAT/2003/839_02_1404.html Cite as: [2003] UKEAT 839_02_1404, [2003] UKEAT 839_2_1404 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE J McMULLEN QC
(SITTING ALONE)
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
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:
The Issue
The Legislation
Discrimination and the police
"(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."
"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
"(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
The Parties and the Chairman's Findings
The Respondent's Case
The Applicant's Case
The Authorities
(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.
Procedural matters
"... 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."
Liversidge, the ETD and management decisions
"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."
"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.