Who is Liable?

He mounted an appeal to the PAT against this dismissal but withdrew that appeal shortly before the hearing.  He then issued proceedings in the Employment Tribunal claiming that he had been the victim of disability discrimination.  His case was that he suffered from a personality disorder and that this amounted to a disability pursuant to s6 Equality Act 2010 (EqA).

He claimed that the discrimination arose from his disability (s15 EqA) in that he had a propensity to become confused and untruthful.  He claimed that the disciplinary panel should have been cognisant of this and made an adjustment allowing him not to be dismissed thus giving rise to a further claim under s21 EqA (failure to make a reasonable adjustment).

He sought to bring into the action not only the Chief Constable but the IOPC and the disciplinary panel through its Legally Qualified Chair (LQC).

Proceedings against the Chief Constable were brought pursuant to s42(1) EqA which deems the Chief Constable to be the ‘quasi employer’ of a constable for the purposes, inter alia, of discrimination proceedings.

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

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 purpose for what would seem to be a ‘wrong’ in the law is undoubtedly attributed to the concepts of fairness and the justness of the legal system so as to maintain a socially accepted public policy.  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.

More recently the appeal in Mahmud v Morrison (2016) a case involving unlawful use of employee data by an employed IT professional, seemed to seek to address the issue of a close connection test required to establish 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 were committed in a manner closely connected with the business they employ.

The basis of the Eckland action centred on the fairness or otherwise of attributing vicarious liability to a Chief Constable for the actions of a disciplinary panel over which she had no control; likewise the IOPC.

Taking a step back it has to be understood that a chief officer of police has no employment or agency relationship with either a disciplinary panel established pursuant to the applicable regulatory process; and neither is there any such relationship between the chief officer and the IOPC.

The imposition of vicarious liability against the Chief Constable stems from the operation of the ‘Marleasing’ principle (Marleasing SA v La Comercial Internacional de Alimentación SA (1990) C-106/89) approved in the domestic case of 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.  The court in that case held that under EU Directive 2000//78 (Framework Directive) the Claimant enjoyed the right to equal treatment in employment including the right not to be unlawfully discriminated against.  This carried with it the entitlement to any remedy for a breach of that right to be effective and most importantly equivalent to those available for similar claims in domestic law. Whilst a dismissed officer might appeal to the PAT (that right remaining constant throughout all the Conduct Regulations) this was no more than an employee in the private sector already enjoyed without losing the right to litigate through the Employment Tribunal.  Therefore, to fulfil the needs of equivalence it was necessary to allow an officer to engage with the Employment Tribunal system for discrimination claims.

This effectively fixed the Chief Constable with vicarious liability for acts of the disciplinary panel despite there being no employment relationship between them.  The case of P was governed by the Police (Conduct) Regulations 2008.  Under those regulations a gross misconduct case was heard by a panel of three, chaired by a senior officer (superintendent or above) plus a senior HR professional and a lay member chosen from an approved list.

The Eckland gross misconduct hearing was governed by the Police (Conduct) Regulations 2012 (as amended)).  The system under these regulations was similar to that found in the 2008 Regulations but the 2015 amendments introduced the appointment of an LQC to preside over misconduct hearings.  Also introduced was the concept of a ‘Barred List’ prohibiting a dismissed officer from gaining employment in other forces.

Returning to the Eckland case, the Chief Constable appealed the first instance decision to the EAT.  At that hearing the Claimant, Eckland, conceded that he could not proceed against the IOPC and withdrew his claim in that respect thus effectively allowing the appeal against liability.  HHJ Kerr did however qualify his position with respect to the IOPC which necessitated further action. 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. The main body of the appeal was dismissed with the EAT following the decision of the Supreme Court in P.

The Chief Constable appealed to the Court of Appeal and leave was granted on two main grounds.  Firstly, the Chief Constable maintained that the case of P could be distinguished and secondly, even if it could not be distinguished it was not binding because in P the court had wrongly proceeded on the basis that there was no other forum in which a dismissed officer could bring a discrimination claim.

The IOPC, the Association of Legally Qualified Chairs and the Association of PCCs were all permitted to intervene as there had been no involvement by any of them at earlier stages and there were specific issues that affected each of them, the IOPC and the Association of LQCs directly.  The IOPC sought clarification of HHJ Kerr’s remarks in his judgment that envisaged unspecified circumstances where the IOPC could be the subject of Employment Tribunal proceedings.  The Association of LQCs were understandably concerned that if the appeal were successful then liability for any discriminatory acts by a misconduct panel would fall on their shoulders with many LQCs not being indemnified by the PCC or only benefitting from limited term indemnity

In the CA and on the first ground the Chief Constable submitted that because of the changes in the Regulations this in itself was sufficient to show a sea change in functionality thus distinguishing P.  It was submitted that the changes in the Regulations placed “clear blue water” between the Chief Constable and any acts of the disciplinary panel. The CA did not accept that position as P, although dealing with the 2008 Regulations, had been decided after the introduction of the 2012 Regulations and the 2015 amendments.  Accordingly, the SC decision had been made in full knowledge of the changes in Regulations and the CA was persuaded that had it perceived that these made a difference, it would have been mentioned in the judgment.  It had not.

The second ground of appeal was that the court in P had not been made aware that the claimant would have had a straightforward remedy against the panel by advancing a claim under section 29(6) EqA, which falls under Part 3 (“Services and Public Functions”), but unfortunately this point had not been drawn to the Supreme Court’s attention.  Section 29(6) provides:

“A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.”

Section 31(4) EqA defines “a public function” as “a function that is a function of a public  nature for the purposes of the Human Rights Act 1998”. The Chief Constable submitted that a police misconduct panel constituted under the 2012 Regulations was plainly exercising a function of a public nature. She   contended that a claim of unlawful discrimination under section 29(6) EqA would satisfy   both the effectiveness and the equivalence requirements and accordingly the SC’s belief that there was no alternative was misplaced.  The Chief Constable submitted this was sufficient to allow the CA to disregard the SC decision.  This on the basis that a court was not bound by a proposition of law which, although part of the ratio   decidendi of an earlier decision, had been assumed to be correct by the earlier court   and had not been the subject of argument before, or consideration by, that court” (Kadhim v Housing Benefit Board, Brent [2000] EWCA Civ 344, [2001] QB 955).

The CA considered that this could be the case but only if the s29 EqA route satisfied the requirements of effectiveness and equivalence. The CA held that whilst such a claim might be effective it did not satisfy the requirements of equivalence. A county court action complete with court fees and costs regime could in no way be said to be equivalent to the Employment Tribunal regime which did not have court fees and was traditionally and predominantly a no costs regime.

There were held to be significant differences between the two regimes insofar as the Employment Tribunal has dedicated Employment Judges experienced in discrimination claims whilst the county court relies upon brought-in expertise to assist non-expert judges. Finally the range of remedies available to each court is different with the county court only being able to award damages and declaratory relief whereas an Employment Tribunal is able to do this plus make recommendations which may be of some importance to litigants.

Accordingly the CA rejected this ground also.

For those reasons the CA held itself to be bound by P to hold that the Chief Constable was liable for the acts and omissions of the Panel, and the appeal was dismissed.

The CA was not prepared to opine on the matter regarding the status of the IOPC in Employment Tribunal hearings and this awaits determination in a future forum.

The Chief Constable has applied for leave to appeal to the Supreme Court and an outcome on this is awaited at time of writing.

More significantly, the Association of LQCs has declined to take on any new disciplinary cases until the matter is resolved one way or another.  If the Chief Constable is successful gaining permission to appeal to the SC this will have a significant and detrimental effect on the processing of misconduct cases as police forces will have to put relevant hearings on hold until resolution of this matter. Should the Chief Constable be successful in the SC the result will be to fix disciplinary panels and their LQC with potential liability for any discrimination claims arising out of their actions. The PCCs will have to consider what action to take to ensure that LQCs and Panel members are able to continue chairing and operating misconduct hearings without risk of personal liability. Concerns expressed by NALQ have   in fact led to the APCC and the Association of Policing and Crime Chief Executives   agreeing to advise their members to provide LQCs with an indemnity  in terms which it regards as acceptable but this is still at an early stage and purely voluntary.

Anne Studd QC and Victoria von Wachter represented the IOPC in the Court of Appeal.