North Yorkshire Police v Rose & Ors [1995] UKEAT 1085_95_1411

EAT
North Yorkshire Police v Rose & Ors
[1995] UKEAT 1085_95_1411 · 1995-11-14
MR JUSTICE BUXTON: This is an appeal from an interlocutory decision of a Chairman of Industrial Tribunals, which was notified to the parties on 19 September 1995, and it concerns the question of whether current proceedings in the Industrial Tribunal should be adjourned.The application for the adjournment and this appeal both arise in slightly unusual circumstances. The application to the Industrial Tribunal concerns a complaint of sex discrimination by Miss Amanda Jane Rose who was formerly, but is not now, a member of the Respondent force, the North Yorkshire Police.Without going into detail of what she alleges, the substance of her complaint before the Industrial Tribunal is that she was discriminated against, both in terms of unfair treatment and also in terms of abusive conduct by, or at the instance of, a Detective Chief Inspector Hallinan. It should be added that in the particulars of her complaint other matters are included that may, or may not be, directly to be laid at the door of Mr Hallinan, but the major part of her complaint relates to that senior officer's conduct.The conduct of which complaint is made by Miss Rose is alleged to have occurred in and up to the end of 1994. The complaint was actually made by her on 8 March 1995, after she had left the Police Force. The Respondent force, the North Yorkshire Police applied to the Chairman of the Tribunal for the Industrial Tribunal proceedings to be adjourned, or deferred until the completion of internal disciplinary proceedings that had been initiated within the police force against Mr Hallinan.The Chairman of the Tribunals did not, it appears, deliver a formal judgment on that application, but his reasons for declining the adjournment are set out in a letter from the Regional Secretary of the Industrial Tribunals office that was sent to the parties on 19 September 1995, and it is from that decision that this appeal is brought.In the proceedings before us, and without opposition by Miss Rose's Counsel, there has intervened, in a separate interest, the Chief Constable of the North Yorkshire Force, whose intervention has been explained in an affidavit that is before this Tribunal, but was not before the Chairman of the Industrial Tribunal, of Mr John William Gifford, who is the Assistant Chief Constable of the North Yorkshire Force.We should say something to explain why there is this apparent multiplicity of representation on behalf of the Police Force, because it is an important feature in this case. Mr Hallinan faces disciplinary proceedings under the Police Disciplinary Regulations which are a statutory code that govern conduct and discipline within police forces. The allegations that he faces concern a variety of matters, mainly but not exclusively concerned with alleged (and we emphasise of course, in all of this, only alleged at this stage) misconduct of an abusive or sexually discriminatory nature in respect of three different female members of his force; one, but only one of whom, was Miss Rose.The arrangements for trying that disciplinary allegation are carefully laid down in statutory regulations and are of a particular and distinct nature. First of all, they are conducted according to the criminal standard and burden of proof and, in effect, in a way that approaches very close to being a simulacrum of a criminal trial. Secondly, and more importantly for the present purposes, for reasons that it is easy to understand but which cause considerable complications in the present case, the disciplinary proceedings are conducted by, and are in the hands of and under the control of, the Chief Constable, who performs a statutory function which is different from that of the police authority.The Chief Constable, in the present case, for reasons explained in Mr Gifford's affidavit, will not in fact be himself conducting this matter. He has delegated the supervision of it to Mr Gifford. The person who will actually conduct the proceedings, as in effect the judge, will be a Chief Constable of a different force. The importance of that is (if we can put it briefly) that the disciplinary proceedings are concerned with Mr Hallinan's status and role as a Constable; that is why the Chief Constable is the person concerned with them.In its capacity as employer, either of Mr Hallinan or of Miss Rose, the police authority has no role to play. Indeed, even more pressingly, the view is taken that it is improper for those who advise the police authority on employment questions to be involved with, or to know anything about, the progress of the disciplinary proceedings. The point is made before us today that if the Industrial Tribunal proceedings, which are a matter of employment and therefore are conducted by the police authority and not by the Chief Constable, are to take place before the disciplinary proceedings have been resolved, the employing authority will be placed in an impossible position, because it cannot know what the position is in the disciplinary proceedings; and because of the need to protect his position in the disciplinary proceedings, it will not be possible for the employer to require the most obvious employee to give evidence, that is to say Mr Hallinan, in fact so to do.All that is by way of background. The matter came before the Chairman of the Industrial Tribunal in September and we have been told, and properly told this morning by Miss Buckingham who appears for the Chief Constable, that on that occasion the major heads of concern that have been expressed to us today were expressed to him; though as we say he did not have the benefit of Mr Gifford's affidavit. We doubt whether the particular difficulty caused by the division of functions between the Chief Constable and the Police Authority was explained to him with the clarity that it has been explained to us. Additionally, he did not have the benefit, as we understand it, of the detailed account set out in paragraph 11 of Mr Gifford's affidavit, of the investigations within the police force that had led up to the preferment of the present charges against Mr Hallinan. That is of some importance because it goes to explain, to a considerable extent, a matter that was certainly unclear to the members of the Tribunal when they received the original papers, as to why so long appeared to have been spent in preparing and bringing to fruition the disciplinary proceedings within the police force. The weight and detail of the investigation, only a small part of which in the event, has come to fruition in the shape of charges against Mr Hallinan (we understand there are charges against other persons outstanding) to a large extent explains the timetable in this case.The matters that were urged on the Chairman as to why the matter should be adjourned, were firstly, that the disciplinary proceedings would be over in a comparatively short time, a time that in the general run of Industrial Tribunal cases, would not lead to delay of an outrageous or unreasonable nature. Secondly, that there would be difficulty and embarrassment in conducting the Industrial Tribunal proceedings in advance of the disciplinary proceedings. Thirdly, that the disciplinary proceedings might be handicapped in that Mr Hallinan might claim that he had been unfairly treated or caused difficulty in his defence, by reason of what had passed in the Industrial Tribunal. Fourthly, that no identifiable prejudice would be caused to Miss Rose herself by an adjournment of her claim before the Industrial Tribunal.Summarising what the Chairman said about that, he said in the third paragraph of the Tribunal's letter that he had to consider prejudice to each side; that Industrial Tribunals were set up to hear employment matters speedily (a consideration that is heavily in the mind of everybody concerned with the Industrial Tribunals system) and then he said this in paragraph 3(b):-
"3(b) There was no guarantee that the internal disciplinary hearing would take place in April and might take place at some considerably later time and that the originating application had been presented as long ago as 10 March 1995. Moreover the applicant had left the police force and she would be anxious to have her case determined and she would have no direct interest in the outcome of the disciplinary hearing. Moreover the standard of proof at the industrial tribunal was of a lower order and the Chairman could not see that the disciplinary internal hearing would in any way be prejudiced. The internal disciplinary board would not be bound, as might another court or tribunal, by the facts found by the industrial tribunal. In all those circumstances the Chairman was not prepared to defer the industrial tribunal hearing until after the internal disciplinary hearing."
It is perhaps important to note that Miss Rose herself is, to a considerable extent, involved in the disciplinary proceedings. She is to be a witness to a considerable number, or to some, of the allegations involved in them. Secondly, she makes part of her case before the Industrial Tribunal, in her further and better particulars of her claim that were served on 26 July 1995, that she was victimised by Mr Hallinan because, among other things, she had co-operated with the disciplinary enquiry team which (as I have already indicated) had been investigating matters concerning Mr Hallinan and other officers of that force since the summer of 1994. There is therefore, a close relationship between the two matters.We have reminded ourselves, nonetheless, that the Chairman of an Industrial Tribunal, exercises a very wide discretion in matters of procedure and particularly in matters concerned with the timing of cases coming before his Tribunal. We have reminded ourselves, and been reminded, that this Tribunal, the Employment Appeal Tribunal, will only intervene in such decisions in very particular circumstances.In this case however, we think that the whole matter and the whole case, as it has now been developed before us, particularly with the advantage that the Chairman below did not have of having separate representation on behalf of the Chief Constable and of the Police Authority, bears a considerable different aspect from that which must have presented itself to the Chairman. In particular, it has been made very plain to us today, as we think it cannot have been made plain to the Chairman below, the very considerable difficulty that the Police Authority will have in conducting the case before the Industrial Tribunal fairly if the disciplinary proceedings are still outstanding, and there is therefore a substantial difficulty in obtaining the assistance and evidence of Mr Hallinan. That is a point that impresses this Tribunal. We think it cannot have been made, certainly with anything like the clarity that is made today, to the Chairman below. If it was made to him, we do have to say that it is surprising that that particular aspect of the case was not investigated in his letter setting out his reasons. In our judgement, that is a clear sign that he was not apprised of this difficulty in the way that we have been apprised.Furthermore, we consider that the particular aspects of this case are not so much a question of whether one court or another is bound by the previous findings, as the Chairman seemed to have understood the case, but rather whether the proceedings before the Industrial Tribunal can be conducted fairly at all, and that again is a reason why we feel that the Chairman did not have the matter brought clear to his mind.So far as the question of delay itself is concerned, the Chairman was understandably concerned at the suggestion that a case before his Tribunal should be deferred to await police investigations; investigations that on the material before him might have been thought not to have been conducted with the greatest diligence. It is now clear to us that, in so far as any such suggestion might have appeared in the matters before the Tribunal, that was unfounded, because we now have a very detailed account that the Chairman did not, we understand, have of the efforts that had been made to pursue this disciplinary matter.The Chairman was nonetheless concerned, as we are, at the timetable for the future conduct of this case. As will become apparent, we are minded to allow this appeal, adding that we have been assisted (to some extent) in that by the fact that no specific prejudice to Miss Rose has been identified to us and we cannot ourselves indicate any. We are however concerned about the effect of our decision. We have been told today by Miss Buckingham that there is to be a plea and directions hearing, or the equivalent of such, in January, although the date has not yet been fixed. We very much hope and expect that that date will be achieved. We have also been told by her, though with less confidence and with a proper warning given to us by Mr Forrester, the Solicitor acting for Mr Hallinan whom we allowed to address the court and who helpfully did so, that the hearing itself may be expected to be (it is hoped) in April or May. This Tribunal will expect all those concerned with those matters to pursue them with due and proper diligence. It is only in the expectation that that will happen that we feel able to allow this appeal. To see to those matters with due and proper diligence, we go so far as to say, will include the giving to the disciplinary proceedings by any police officer who is engaged in them in whatever capacity, a proper priority; by which we mean that we do not expect it to be the case, or to be told on a later occasion, that the proceedings have had to be adjourned or put off, simply because of the non-availability of witnesses from the police force; whether they be giving evidence on behalf of the prosecuting officer or on behalf of Mr Hallinan.We were assured that this matter was in the forefront of attention of the police force. We trust that that will be so. Although the adjournment at present envisaged of the Industrial Tribunal proceedings is not in our judgement excessive, it will become so if the matter is allowed to drag on without resolution.For that reason, we give liberty to Miss Rose to re-apply to the Industrial Tribunal, should it become apparent to her or to her advisers that the delay occasioned by our granting of this appeal is exceeding the period envisaged by us, and on the basis of which we have approached this matter. Having said that, we emphasise that the date of April is not intended to be set in stone; at the same time however we very much trust that it will be treated as a serious working target and not just some aspiration. We hope that on that aspect of the case, to which the Tribunal attaches importance, that we have said enough to make our view plain.In the event therefore, the intervention of the Chief Constable is permitted as we have already ordered. The appeal is allowed. Miss Rose is given liberty to reapply to the Industrial Tribunal in the circumstances that we have indicated.