The troublesome case of vicarious liability for police forces

The principle of vicarious liability is one that is unique within the justice system. It looks beyond the primary tortfeasor’s liability and applies liability to an otherwise innocent party – the employer – who may or may not have any knowledge of the injury and how it came about.  In essence it is only necessary for it to be shown that the act was closely connected with the employee’s work for vicarious liability to be established.   It also has the effect of attributing liability to a defendant that may have a better capacity to satisfy an award of damages.

In Herne v Nicholl (1700) it was declared ‘For seeing somebody must be a loser, it is more reason, that he that employs and puts a trust and confidence…should be a loser rather than a stranger’. This is indicative of the fact that for justice to prevail, somebody must be held to account and in this case it should be the employer by way of vicarious liability.

Vicarious liability does not place direct blame on an employer, rather, it is a consequential liability. This allows for an employer to only be held liable for the tort if it is committed in a manner closely connected with the business they operate.

In the police service the Chief Constable is deemed (through the operation of s42 Equality Act 2010 (EqA)) to be the employer of police officers who are otherwise ‘office holders’. Disciplinary proceedings are dealt with by an independent panel over which the Chief Constable has no control.  Despite this, liability for acts of discrimination by that panel still lies with the Chief Constable by the operation of the so called ‘Marleasing principle’ insofar as it relates to police service and as tested in P v Commissioner of Police for the Metropolis [2017] UKSC 65, ICR 560.

The thrust of the Marleasing principle is that domestic legislation should be ‘read down’ so as to give effect to the relevant European rights.  In P the court held that, in a claim for disability discrimination, it was necessary, in order to comply with EU law, to read section 42(1)EqA in such a way that the actions of a panel determining a charge of misconduct by a police officer fell to be treated as acts of the relevant Chief Officer.

This effectively fixed the Chief Constable with vicarious liability for acts of the disciplinary panel despite there being no employment relationship between it and the Chief.

In Eckland v Chief Constable of Avon & Somerset Police, proceedings against the Chief Constable were brought pursuant to s42(1) EqA 2010  relating to acts/omissions of the Disciplinary panel and/or the IOPC.

At first instance the Chief Constable was held to be vicariously liable for the acts and omissions of the disciplinary panel chaired by a Legally Qualified Chair and for those of the IOPC.

The Eckland appeal challenged the fairness of attributing vicarious liability to a Chief Constable for the actions of a disciplinary panel over which she had no control.  Likewise the IOPC (against which the claim was later withdrawn). The Chief Constable argued that it was simply unfair and unrealistic that a body for which she had no responsibility and over which she had no control could act in such a way as to make her liable for actions in unlawful discrimination.

Appeals to the EAT and the CA centred on whether or not the case of P was correctly decided, as a different disciplinary regime applied at the time of that decision, and also on the ground that the court had not been made aware of some relevant information on alternative remedies available to the Claimant .  On both occasions the appeals were unsuccessful, but the Chief Constable has applied for leave to appeal to the Supreme Court.

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Authors

Victoria von Wachter

Call 1997

Related areas

Employment

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