P (Appellant) v Commissioner of Police of the Metropolis (Respondent) - (25 Oct 2017)

Police constables has right to bring proceedings before Employment Tribunals in order to challenge discrimination by chief officers and responsible officers

Civil

Present appeal concerns the directly effective right of police officers under EU law to have the principle of equal treatment applied to them. The question raised is whether the enforcement of that right by means of proceedings in the Employment Tribunal is barred by the principle of judicial immunity, where the allegedly discriminatory conduct is that of persons conducting a misconduct hearing. The Appellant was assaulted in 2010, while serving as a police officer, and subsequently suffered post-traumatic stress disorder (“PTSD”). In 2011, she was involved in an incident which led to her arrest. She asserted that, her behaviour on that occasion was related to her PTSD. After investigation, she was made the subject of a disciplinary charge before a misconduct hearing constituted under the Police (Conduct) Regulations 2008 (“the 2008 Regulations”). There, apart from one issue of fact which was resolved in her favour, she accepted that she had been guilty of the misconduct alleged. She relied on her good record as a police officer and her PTSD in mitigation. On 12th November, 2012, the persons conducting the hearing (“the panel”) imposed the sanction of dismissal without notice. The Court of Appeal dismissed appeal filed by present Appellant.

In a case where directly effective EU rights are in issue, EU law must be the starting point of the analysis. It may also be the finishing point, since it takes priority over domestic law in accordance with the provisions of the European Communities Act 1972.

The Framework Directive confers on all persons, including police officers, a directly effective right to be treated in accordance with the principle of equal treatment in relation to employment and working conditions, including dismissals: Article 3(1)(c). That right is subject to specified exceptions and qualifications, none of which is applicable to the present case. The United Kingdom is obliged, under Article 9(1), to ensure that, judicial and/or administrative procedures are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them. Under Article 17, sanctions which are effective, proportionate and dissuasive must be applied. The procedures under national law must also comply with the general principles of effectiveness and equivalence, and with the right to an effective remedy under Article 47 of the Charter of Fundamental Rights of the European Union.

The principle of equivalence entails that, police officers must have the right to bring claims of treatment contrary to the Directive before Employment Tribunals, since those Tribunals are the specialist forum for analogous claims of discriminatory treatment under our domestic law. They are expert in the assessment of claims of discriminatory treatment, and have the power to award a range of remedies including the payment of compensation, even in cases where the dismissal or other disciplinary action itself stands. They therefore, fulfil the requirements of the principle of effectiveness. To leave police officers with only a right of appeal to the Police Appeals Tribunal would not comply either with the principle of equivalence, since analogous complaints under domestic law can be made to an Employment Tribunal, nor with the principle of effectiveness, since (for example) the Police Appeals Tribunal cannot grant any remedy in cases where the discriminatory conduct is not such as to vitiate the decision of the misconduct panel.

There can be no question of the United Kingdom being entitled to deny police officers an effective and equivalent remedy, where their rights under the Directive have been infringed, as a matter falling within a national margin of appreciation. Nor, indeed, is it suggested that there could be. On the contrary, the right not to be discriminated against on grounds including disability is a fundamental right in EU law, protected by article 21(1) of the Charter. It follows that, even if it is designed to protect the officer under investigation, the creation of a statutory process which entrusts disciplinary functions in relation to police officers to persons whose conduct might arguably attract judicial immunity under domestic law cannot have the effect of barring complaints by the officers to an Employment Tribunal that they have been treated by those persons in a manner which is contrary to the Directive. National rules in relation to judicial immunity, like other national rules, can be applied in accordance with EU law only in so far as they are consistent with EU law.

In the 2010 Act, Parliament sought to implement the Directive specifically in relation to police officers. Section 42(1) deems a constable to be the employee of the chief officer for the purposes of Part 5 of the Act, in relation to any act done by the chief officer, and the employee of the responsible authority, in relation to any act done by that authority. Section 120 confers jurisdiction on an Employment Tribunal to determine any complaints relating to contraventions of Part 5. Those provisions plainly confer on police constables the right to bring proceedings before employment tribunals in order to challenge discrimination by chief officers and responsible authorities in relation to employment and working conditions, including dismissals. It was presumably envisaged by Parliament that the exercise of disciplinary functions in relation to police officers would fall within the scope of those provisions. That is indeed the case in relation to senior officers, under Regulation 34(1) of the 2012 Regulations, and probationary constables, under Regulation 13 of the Police Regulations, 2003. Supreme Court allowed the appeal and Appellant’s case is remitted to the Employment Tribunal.

Tags : POLICE OFFICER RIGHTS EQUAL TREATMENT