P v Metropolitan Police Commissioner [2016] EWCA Civ 2

Before:

LORD JUSTICE LAWS

LORD JUSTICE LEWISON

LORD JUSTICE CHRISTOPHER CLARKE

Background

The Claimant was a serving Police Officer. She was assaulted in 2010 and as a consequence suffered Post Traumatic Stress Disorder (PTSD). On 12 September 2011, the Claimant, whilst intoxicated, was involved in an incident which led to her arrest. Following a disciplinary investigation, the Claimant was brought before the Police Misconduct Board (the Board), where the Claimant accepted that she was guilty of the alleged misconduct. In her mitigation, she relied on her good employment record and asserted that her behaviour was affected by her PTSD. On 12 November 2012, the Board dismissed her from the Police Force without notice.

Employment Tribunal

The Claimant initiated Employment Tribunal proceedings for unfair dismissal and disability discrimination, arguing that the Board, in dismissing her, had treated her unfavourably for something arising as a consequence of her disability (PTSD) and had also failed to make reasonable adjustments. The Employment Tribunal struck out her claim for unfair dismissal, on the basis that (by common law) a Police Officer is an ‘office holder’, not an employee. The Claimant was able (as are police officers in general) to claim disability discrimination under the Equality Act 2010 (the Act), which is one of the limited circumstances in which statute allows police officers to access employment tribunals. Specifically, the Act stipulates that discrimination may arise from an employee’s disability and that there is a duty to make reasonable adjustments. The Employment Tribunal stated that the Board is a judicial body, which enjoys immunity from suits, concluding that the claim was not merely to challenge the correctness of the decision, but ‘indicts the Board as perpetrators of discrimination’. The claim was struck out.

Employment Appeal Tribunal (EAT)

The Claimant appealed to the EAT. The EAT, in concluding that the Employment Tribunal was right to strike out the claim, stated that the claim violated the Board’s judicial immunity. In making this decision the EAT relied on Heath v Commissioner [2005] ICR 329 (Heath), the interpretation of which was that ‘the things done or said during the course of decision making were protected by immunity, but not the decision itself’. The EAT reasoned that the claim of alleged discrimination was not based on the decision itself, but the way in which the decision was reached. The EAT also referred to the decision in Lake v British Transport Police [2007] ICR 1293 (Lake) which held ‘nothing to the contrary’.

The EAT upheld the Employment Tribunal’s decision.

Court of Appeal

The Claimant appealed to the Court of Appeal. The Claimant’s argument was that Heath was inconsistent with the latter case of Lake, arguing that where possible Lake should be followed and the appeal should be concluded in her Claimant’s favour.

The Court of Appeal therefore examined the decisions of both Lake and Heath:

Heath

Heath was an employee of the Metropolitan Police who alleged that a police inspector had sexually assaulted her while at work. A disciplinary hearing took place, where she gave evidence and responded to questions from a male advocate. She was also cross examined by male counsel, instructed on behalf of the police inspector. On 5 June 2001, the she issued proceedings before an Employment Tribunal alleging sexual discrimination by members of the disciplinary panel, which consisted of three males from the Metropolitan Police. The Employment Tribunal held that the police disciplinary hearing constituted judicial proceedings, the panel members of which had absolute immunity in respect of complaints of unlawful sexual discrimination. The EAT agreed. On appeal, the conclusion was that the Employment Tribunal and the EAT were ‘not only entitled, but well justified’ in finding that the disciplinary panel was a judicial body acting in its judicial capacity, and was therefore immune.

‘The essential features of the disciplinary hearing rendered it closely analogous to a judicial proceeding…’

Lake

The Claimant was a constable for the British Transport Police (BTP). Disciplinary proceedings were brought against him following him making a protected disclosure. The concerns included an allegation that he made false accusations and incited another officer to make a false statement. The disciplinary panel found the allegation proven and he was dismissed. Upon the Claimant’s request (as entitled) his dismissal was reviewed by a chief officer of the BTP, who upheld the dismissal. The Claimant subsequently sought resolve at an Employment Tribunal, but his appeal against his dismissal failed. It was agreed that the Claimant was dismissed by the Police Disciplinary Board which, following the decision in Heath, was fulfilling its quasi-judicial function and was therefore immune.

However, his appeal was allowed to determine whether the claimant could pursue his s.103A Employment Rights Act 1996 claim against the reviewing chief officer, unconstrained from the Board’s finding of fact. Section 103A provides that an employee who makes a protected disclosure, and is dismissed for having done so, is deemed to have been unfairly dismissed. The case was sent back to the Employment Tribunal, which found that the reviewing chief officer, as opposed to the disciplinary panel, was in effect the dismissing officer. It was held therefore that the Claimant had been unfairly dismissed on the alleged grounds.

Conclusion

In considering the current case, Laws LJ acknowledged that Lake proceeded on the premise that Heath was correctly decided and that there is no arguable inconsistency between the two cases: the Board, in acting in a judicial capacity, enjoys immunity. Law LJ concluded that Heath was binding and he could see no distinction from the present case.

Laws LJ added that he was ‘troubled’ by the fact that claims by police officers who have been dismissed by a disciplinary panel will not be viable in employment tribunals. However, he acknowledged that Parliament had passed the Equality Act 2010 in knowledge of the Heath judgment and had decided to include no provision to remove the ‘cloak of immunity’ from disciplinary panels.

The appeal was dismissed. 

This case makes clear that police officers cannot bring proceedings in the employment tribunal to challenge the decisions of the Board. Other regulated professionals, such as those who work in health and social care, should note that the position will be the same in respect of decisions made by statutory disciplinary tribunals. The method of challenge against a decision made by a disciplinary tribunal is initially by way of appeal. In short, the employment tribunal will have no jurisdiction to consider complaints of this nature. This case demonstrates that a disciplinary panel’s attributes and purpose, analogous to judicial proceedings, render it immune from legal action.