Ms K Richardson v Commissioner of the City of London Police: 2212731/2023

EMPLOYMENT TRIBUNALS

Case No 2212731/2023

Between

Ms K RichardsonClaimant

Commissioner of the City of London PoliceRespondent

Before

Employment Judge Nicolle

In person for claimant

Ms A Palmer (instructed by counsel) for respondent

Date 27 March 2024

JUDGMENT

[1]The Tribunal does not have jurisdiction to hear the claim of harassment related to sexual orientation pursuant to section 26 of the Equality Act 2010.

[2]Further, and in the alternative to the above, the claim for religious discrimination in respect of an alleged harassing remark made by TDS Kitchener in respect to a Muslim colleague, would have been struck out under Rule 37 (1) (a) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 on the ground that it had no reasonable prospect of success.

[3]The Tribunal does have jurisdiction to hear the claim under section 48 of the Employment Rights Act 1996 for a detriment arising on 7 January 2023 as a result of the Claimant’s “Bad Apple” report in June 2021 pertaining to TDS Kitchener, and the contents of which she says she was required to repeat at his disciplinary hearing on 7 January 2023.

[4]Oral reasons were given to the parties and either party is able to request written reasons within 14 days of this judgment being sent to them. Case Number: 2212731/2023 - 2 - Employment Judge Nicolle Dated: 8 January 2024 Sent to the parties on: 11/01/2024 For the Tribunal Office Case Number: 2212731/2023 - 1 - EMPLOYMENT TRIBUNALS Claimant: Ms K Richardson Respondent: Commissioner of the City of London Police OPEN PRELIMINARY HEARING Heard at: London Central via CVP On: 1 March 2024 Before: Employment Judge Nicolle Representation: For the Claimant: in person For the Respondent: Ms A Palmer of counsel

[1]The Tribunal does not have jurisdiction to hear the claim of detriment on account of a protected disclosure pursuant to section 48 of the Employment Rights Act 1996 given that the alleged detriment occurred in circumstances where core judicial proceedings immunity applied.

[2]The claim is therefore dismissed pursuant to Rule 27 (1) of The Employment Tribunals (Constitution & Rules of Procedure) Regulations 2013 (the Rules) on the basis that the Tribunal has no jurisdiction to consider it, or alternatively is struck out pursuant to Rule 37 (1) (a) on the basis that it has no reasonable prospect of success.

[3]This therefore means that the claim in its entirety fails and is dismissed.

[4]Oral reasons were given to the parties and the claimant requested written reasons which are set out below. RULING The application

[5]This is an application brought by the Respondent following an email from Mr Field, the solicitor instructed, dated 20 January 2024. The Case Number: 2212731/2023 - 2 - application was set out in the Tribunal’s letter to the parties dated 24 January 2024 and it involves an application to strike out the application on the following grounds. The claim of detriment for making a protected disclosure should be dismissed(a) because core judicial proceedings immunity applies and the Tribunal has no jurisdiction to hear the claim,

(b) because taking into account both the further jurisdictional argument as to the Respondent’s liability for the actions of Counsel and the defence on the facts the claim has no reasonable prospect of success.

[6]The parties acknowledged that if I grant the application the effect will be that the claim in its entirety would fall away given earlier case management rulings. The remaining detriment the Claimant relies on under s.48 of the Employment Rights Act 1996 being that on 7 January 2023 during TDS Kitchener’s misconduct hearing the Claimant says she was asked by the Respondent’s Counsel whether she made mention of the “bad apple” report despite the Claimant believing that the report had been made anonymously. Whilst under oath the Claimant says she was required to confirm that she had made this report and she believes that she was required to do so because of the disclosure she had made in June 2021. The hearing

[7]Both parties provided skeleton arguments. I was also referred to a bundle of authorities provided by the Respondent and a bundle of documents primarily comprising the Police (Conduct) Regulations 2020 (the Regulations) but also relevant correspondence from the case file to include the pleadings.

[8]A witness statement was submitted from Detective Inspector Steven Kettle. The Claimant did not seek to challenge that statement and it was taken as read. In his statement Mr Kettle makes reference to the Regulations and the way police disciplinary hearings are conducted. He says that a police officer is entitled to be legally represented at such hearings and that TDS Kitchener chose to be legally represented. Findings of fact

[9]It is relevant for me to Regulations. It is a detailed document and is the successor to previous versions. Ms Palmer says that whilst there have been some changes that the overall status and process remains largely unaltered and should not therefore impact on previous case law decisions to which she referred. If anything she says the process has become progressively more formal and more akin to a court process and I will return to its structure.

[10]S.2.2 sets out the process for the conduct of misconduct hearings, the standard of proof and so on. I was referred to an article in the Tribunal Journal from 2019 written by a Douglas Readings, Chair of Police Misconduct Hearings. He says that such hearings combine features of a Case Number: 2212731/2023 - 3 - number of judicial and quasi-judicial bodies. It is both inquisitorial and adversarial. It is not part of HMCTS. He says that since 2012 the panel for each case has comprised a legally qualified chair, a senior police officer, (usually a Superintendent or Chief Superintendent) and a lay member. Since 2014 police misconduct cases have been heard in public except where there are special reasons for all or part of the hearing to be heard in private. Hearings are conducted in two parts, first the Panel decides, by a majority if necessary, which of the disputed facts are found proved on the civil standard of proof and also decides whether the facts found proved amount to misconduct or to gross misconduct. He says that with a legally qualified chair and two wing members, one professional and the other lay, police misconduct hearings are recognisable as a tribunal system with jurisdiction covering the whole of England and Wales.

[11]The police disciplinary hearing lasted for at least a week. The Claimant gave evidence for approximately three hours on 7 January 2023. It took place at the police offices at New Street in a training room. It comprised a legally qualified Chair and two Lay Members. It appears to have had a degree of formality in so far as the Claimant and others produced written witness statements and then were asked questions on those statements. There was a bundle of documents. Members of the public were entitled to attend. The Law Judicial proceedings immunity

[12]The judgment of Devlin LJ in Lincoln v Daniels

[1962] 1QB 237

at 257-258 set out the position as follows: “The absolute privilege which covers proceedings in on before a Court of Justice can be divided into three categories. “The first category covers all matters that are done before a Court. This extends to everything that is said in the course of proceedings by judges, parties, counsel and witnesses, and includes the contents of documents put in as evidence” (which I shall refer to as category 1). “The second covers everything that is done from the inception of the proceedings onwards and extends to all pleadings and other documents brought into existence for the purpose of the proceedings and starting with the writ or other document which institutes the proceedings” (which I shall refer to as category 2). “The third category is the most difficult of the three to define, it holds that the privilege extends to preparatory steps taken in relation to witness evidence to include the proof of that evidence taken by a solicitor” (which I shall refer to as category 3). Case Number: 2212731/2023 - 4 -

[13]In Heath v Commissioner of Police of the Metropolis

[2005] ICR 329

it was contended that the way Ms Heath had been questioned during the course of the disciplinary process amounted to further acts of sex harassment given the nature of questions put to her. This case concerned the then prevailing 1985 Regulations. The Employment Tribunal had explained why they were satisfied that the function of the disciplinary hearing was to arrive at judicial and not an administrative determination and that it followed that the Board and the Commissioner enjoyed absolute immunity from actions about the conduct of the hearing. They therefore dismissed Ms Heath’s application against which she then appealed.

[14]Auld LJ at paragraph 17 held that judicial proceedings immunity applied to anything said or done by anybody in the course of judicial proceeding whatever the nature of the claim made in respect of such behaviour or statement, except for suits for malicious prosecution, for perjury and proceedings for contempt of court. He went on to say: “That is because the rule is there, not to protect the person whose conduct in court might prompt such a claim, but to protect the integrity of the judicial process and hence the public interest”

[15]Was the procedure adopted by the tribunal indistinguishable from that followed by a Court of Justice trying a civil case. The essential similarity with the procedure adopted by the Courts and the legal consequence of the conclusion reached by the Tribunal as a result of the enquiry need to be considered.

[16]Lord Diplock in the Court of Appeal said that consideration should be given to the following factors in determining whether judicial proceedings immunity applied:• Whether the body was recognised by law;

• Whether the issue was akin to that of an issue in the courts;

• Whether its procedures were akin to those in the courts; and

• Whether the result of the of its procedures led to a binding termination of the civil rights of a party.

[17]The decision of the House of Lords in Trapp v Mackie

[1979] 1 WLR 377

House of Lords concerned a teacher subject to a disciplinary hearing and subsequent inquiry conducted by the local authority in which Mr Trapp asserted that malicious evidence had been given against him. The question was whether immunity existed from a civil suit for that maliciously given evidence. It was held that such immunity did apply. There was reference in the judgment of Lord Diplock to the relevant factors to be taken into account and the balancing of conflicting public policies, one general that the law should provide a remedy to the citizen whose good name and reputation is traduced by malicious falsehoods uttered by another and that witnesses Case Number: 2212731/2023 - 5 - before the tribunals should give their testimony free from the fear of being harassed by an action, or an allegation, whether true or false, that they acted from malice.

[18]At paragraph 18 of Lord Diplock’s judgment in Trapp for the absolute privilege to be applicable the tribunal must be one recognised by law. Their hearing was constituted under the 1985 Police Regulations. The second matter is the nature of the question into which the Tribunal is required to enquire. So, was it akin to the type of issues which daily arise in civil suits in Courts of Justice. Was it a trial under a procedure recognised by law of a disciplinary charge conviction on which could result in the visitation on the accused of one of a range of punishments from dismissal to a caution.

[19]In South London and Maudsley NHS v Dathi

[2008] IRLR 350

, the EAT considered an allegation that letters sent in the course of proceedings before the Employment Tribunal amounted to acts of discrimination and victimisation. The EAT held that those letters attracted judicial proceedings immunity and struck out the claim.

[20]The judgment of Lewison JL in Singh v Reading Borough Council

[2013] 1 WLR 3052

is authority for not everything said and done in the course of proceedings attracting judicial proceedings immunity. Submissions Respondent

[21]Ms Palmer referred me to a number of authorities in support of the existence of judicial proceedings immunity. This included Royal Aquarium and Summer and Winter Garden Society Limited v Parkinson

[1892] 1 QB 431

to the effect that statements made in the course of proceedings before a Court of Justice whether by judge, or counsel, or witnesses there is an absolute immunity from liability to an action and that applies to all Courts of Justice to include a tribunal having similar attributes. Further she referred me to Lincoln v Daniels which involved barrister disciplinary procedures and it was held by Lord Justice Sellers that he would regard the Inns of Court in their disciplinary functions in relation to the practising members as equivalently established to benefit from judicial proceedings immunity.

[22]Further, I was referred to the decision of the High Court in A and B v the Chief Constable of Hampshire Constabulary QB/2011/0700 which involved the identity of a police informant being inadvertently disclosed and the question was whether any cause of action arose as a result of such disclosure. There was held that immunity applied notwithstanding that disclosure and it was held at paragraph 27 that the disclosure by the barrister at Court there is no possible doubt that the core immunity applied to the inadvertent disclosure by the barrister in court and that any breach of duty based upon that disclosure was bound to fail and the Master was correct to strike out the relevant pleading. Case Number: 2212731/2023 - 6 -

[23]Ms Palmer asserts that that A and B case bears considerable similarities to the matter upon which the Claimant complains regarding the questions put to her on 7 January 2022 by the Respondent’s counsel at the disciplinary hearing.

[24]The Respondent accepts that whilst there are some exceptions that they do not apply in this case. For example, there may be directly enforceable rights under the European Framework Directive adopted into English law in claims of disability or other forms of discrimination. However, she says that those exceptions do not apply to a case of detriment on account of whistleblowing. The other potential exceptions, none of which she says apply, would involve malicious prosecution, perjury and contempt of court. Claimant

[25]She asserts that when she made the protected disclosure pertaining to the police officer concerned in June 2021 she had a reasonable expectation of her confidentiality being maintained. She accepts it was a quasi-judicial hearing, she gave evidence under oath or what was deemed to be under oath, and she says that her identity as a whistle-blower was revealed during that hearing contrary to her expectation. She says that the line of questioning put to her was not necessary within the hearing. She basically asserts that it is unfair and contrary to what should be good practice for a whistle-blower not to have legal protection in the event of their identity being disclosed in a subsequent disciplinary process where questions are put to them. Conclusions and discussion

[26]I am satisfied that the hearing was conducted in a matter which reflects the article which I was referred from the Tribunal Journal.

[27]Having considered the relevant case law, the 2020 Police Regulations and the nature of the hearing in question I am satisfied that it is covered by judicial proceedings immunity. I have reached this decision for the following reasons.

[28]I consider that the police misconduct hearing was analogous to a Court or tribunal or akin to a Court or tribunal as referred to in the relevant four stage test as set out by Lord Diplock. It clearly had a considerable degree of formality. It was not merely an administrative process; it was conducted with a qualified lawyer with a degree of formality and to all intents and purposes appears very similar to Employment Tribunal proceedings. It had a potential outcome which involved the dismissal of a serving police officer as a result of misconduct. The disciplinary hearing was incontrovertibly that of a formal tribunal process or a procedure conducted akin to a formal tribunal process and therefore the Tribunal does not have jurisdiction to consider it. Case Number: 2212731/2023 - 7 -

[29]Therefore I have no doubt that the hearing falls within the general umbrella of a Court hearing, a tribunal process or a related process which is akin to a Court or tribunal proceeding.

[30]That therefore has the effect that statements made, to include questions put to a Claimant during the course of the hearing, are subject to judicial proceedings immunity. The case is not dissimilar to those I have been referred to include Heath and A v B. The Claimant understandably feels aggrieved that questions put to her were inappropriate and compromised her identity as a whistle-blower. Nevertheless, that is no different from the position of the informant whose identity was unwittingly revealed in A and B but nevertheless judicial proceedings immunity applied.

[31]Further, Ms Heath no doubt felt that the conduct of the disciplinary investigation following her complaints of sexual harassment was highly inappropriate. Whilst in that instance she may have had recourse under the direct application of the Framework Directive this would not be applicable to the Claimant as the Framework Directive does not apply to detriments on account of whistleblowing. Therefore whilst it is an unfortunate outcome for an individual in the Claimant’s situation it is not one which I consider I have any scope to reach an alternative decision given the very clear guidance from the Higher Courts. Outcome and disposal

[32]Therefore the claim is dismissed pursuant to Rule 27 of the Employment Tribunals (Constitution & Rules of Procedure) 2013 (the Rules) or alternatively is struck out under Rule 37 on the basis that it has no reasonable prospect of success.

[33]That therefore has the effect that the claim in its entirety is not one the Tribunal has jurisdiction to consider and is therefore dismissed and/or struck out in its entirety.