Lowrey-Nesbitt v Commissioner Of Police Of Metropolis [1997] UKEAT 559_97_1605

EAT
Lowrey-Nesbitt v Commissioner Of Police Of Metropolis
[1997] UKEAT 559_97_1605 · 1997-05-16
MR JUSTICE MORISON (PRESIDENT) : This is an interesting and difficult appeal for us to deal with. In the first place, there was some confusion as to whether this was a preliminary hearing to determine whether there was an arguable point of law raised by Ms Lowrey-Nesbitt (whom I call, if I may, the Appellant) in her appeal against a decision of an Industrial Tribunal refusing to grant her leave to amend her Originating Application, or whether it was to be a full hearing inter partes .The Respondent to this appeal, the Metropolitan Police Commissioner, was given conflicting signals from the Employment Appeal Tribunal as to the nature of the hearing and we have had the benefit of an attendance by Mr Burns, of Counsel, on behalf of the Commissioner, to whom we are genuinely grateful. We were, all of us, impressed by his skilful presentation of argument on the Commissioner's behalf.As it transpired, it became plain that it was more prudent to treat this as the substantive hearing of the appeal rather than as a preliminary hearing, for reasons which I will endeavour to explain.Ms Lowrey-Nesbitt is a police constable. She had a baby whilst she was such. She wished to return to her duties on a part-time basis. She entered into discussions with an Inspector who was responsible for these matters. There is an issue between the parties as to whether any agreement was reached as to the circumstances in which she could resume work. She then became medically unfit to resume her duties. She was paid sick pay. It is her contention that the sick pay which she has received is not the sick pay to which she is entitled.It is the Police Authority's case that, as a result of the arrangements between her and the Inspector, she became a part-time officer and was entitled to sick pay calculated on that basis. It was, and is, her contention that she arrived at no concluded arrangement with the Inspector as to part-time working and that, accordingly, she has been paid less than her full entitlement to sick pay.The Appellant presented an Originating Application to an Industrial Tribunal on 30 January 1996, under the Equal Pay Act , Article 119, and there is also a reference to the Sex Discrimination Act . Her application to amend, to which this appeal relates, was to add to her Originating Application a complaint under section 13 of the Employment Rights Act 1996 (a Wages Act claim).It is apparent from what I have said that there is a significant issue of fact between the parties as to what occurred when the Appellant sought to return to work and it is obvious, as a matter of public policy, that the sooner that dispute is heard and determined the better, whilst matters are relatively fresh in the witnesses' minds. I say "relatively fresh" because this is a somewhat stale claim.There is a hearing fixed for this case which is due to take place next week. On the application to amend, the Regional Chairman, Mrs Mason, who is extremely experienced, heard argument as to whether an amendment should be granted. Mr Burns was representing the Police Commissioner on that occasion and he made a number of submissions as to why the Tribunal should refuse that application. Those submissions included submissions that it was well out of time; that she should not be given leave on that basis and that she should be refused leave because her proposed amendment was to raise a complaint which was devoid of any legal merit.In an admirably succinct decision, the Regional Chairman, having considered all the submissions, arrived at this conclusion and I quote:
"I have a discretion whether to allow an amendment to this Originating Application whether or not it is made out of time. However, in my view it is clear that the Applicant is not within the definition of Crown employment in section 191 and that section 13 of the Employment Rights Act 1996 does not apply to a Police Constable. That being so, it is pointless to allow the proposed amendment because any claim under section 13 of the Employment Rights Act 1996 is bound to fail. That being so, in the exercise of my discretion, I refuse leave."
We deduced from the wording of that paragraph that, if she had been of the view that the Applicant had an arguable complaint under section 13 of the 1996 Act, she would have allowed the amendment. It seems to us clear that the reason why, and the only reason why she refused to grant leave to amend, was because she was of the view that the proposed new complaint was wholly unarguable.We ourselves, because of the confusion as to the way this case was listed, have not had an opportunity to consider in as much detail as we would have wished, the merits of the legal argument which has been presented to us by the Appellant herself and by Mr Burns of Counsel.It seems to us clear that the amendment should be allowed, all other things being equal, where the complainant is raising a complaint which has some arguable legal basis. We are confident that if the experienced Chairman had been of the view that the complaint was arguable, even if at the end of the day it was her view that it was not likely to succeed, then she would have allowed the amendment so that the Tribunal could have made findings of fact and made rulings in law, so that, if there were an appeal, the Employment Appeal Tribunal could consider the whole decision of the Tribunal: facts and law. As a matter of principle, it seems to us, an Industrial Tribunal will not wish to refuse leave to amend where the potential complaint is arguable.We therefore turn to the submission which Counsel made to us. He draws our attention to a decision called Sheikh v Chief Constable of Greater Manchester Police [1989] ICR 373, and in particular to the passage between F and G on page 376, where Croom-Johnson LJ said:
"Special provision had to be made for the police, because it is trite law that the police are not 'employed' in the usual legal sense of that word. They are holders of a public office under the Crown and their authority is exercised by virtue of that office: see Attorney General for New South Wales v Perpetual Trustee Co Ltd [1955] AC 457 , 489, per Viscount Simmonds. Therefore, unless they were deemed to be in employment by section 16, the Race Relations Act 1976 would have no application to police forces."
It is therefore the contention of Mr Burns that there is authority, which is binding upon us, that a police officer does not work under any contract. Accordingly, it is his submission that a police officer does not fall within the definition of a worker within section 230 of the 1996 Act, which in subsection 3 reads:
"In this Act 'worker' means an individual who has entered into or works under a contract of employment, or other contract, whether express or implied, and any reference to a worker's contract shall be construed accordingly."
Mr Burns refers to section 200 of the Employment Rights Act 1996 and it is to be observed that in that section police officers are expressly dealt with by means of the statutory process of disapplying various provisions of the Act, which otherwise might have applied to them. Those provisions include maternity rights; guaranteed payments; protection from detriment in employment; unfair dismissal; time off work and matters of that sort.If one turns to the legislative background one will see that Parliament throughout has recognised that in social legislation of the kind with which this Court is concerned, police officers have represented something of a problem for the draftsman. The Equal Pay Act 1970 , makes no express provision for its application to police officers. It seems to us that it is probable that section 1(8) of that Act was intended to apply to police officers, but if Mr Burns was correct, the working of that Act in relation to police constables would be difficult, because if there is no contract then there is nothing into which there can be implied an equality clause. Yet the Respondents accept that the Act, or any rate Article 119, applies to police officers.It seems to us therefore that, although it may well be the case that strictly speaking police officers have no contract of employment, for certain statutory purposes they are to be treated as though they do. The Sex Discrimination Act 1975 and the Race Relations Act 1976 , apply to police officers by virtue of statutory provisions which deem them to be treated as in employment.However, in the Trades Union and Labour Relations (Consolidation) Act 1992 , which is a statute which, amongst other things, confers individual rights on workers and employees, for example, the right not to be unjustifiably disciplined by a Trade Union, provides in sections 295 and 296 a definition of employee and worker, respectively. In section 280 it is provided that: "In this Act 'employee' or 'worker' does not include a person in police service", the implication or possible implication being that but for section 280 subsection 1, the police officer would be included.So, if one turns to the 1996 Act, one can note that, although the definition of a 'worker' and 'employee' is widely drawn, nonetheless Parliament felt it necessary, in section 200, to disapply certain parts, but only certain parts, of the Act to police officers. Again, a potential implication being that but for the disapplication of these provisions police officers would or might have been covered.It is to be noted that section 200 does not disapply the provisions of section 13, or what were effectively the provisions of the Wages Act 1986 , which itself was silent as to whether it applied to Police Constables or not.Whilst we quite understand the force and see the force of the submissions made by Mr Burns, it seems to us that the question as to whether a police constable is covered by the provisions of section 13 of the 1996 Act is an important one, and that the Employment Appeal Tribunal would be better assisted in arriving at a final conclusion as to whether they are covered or not, by awaiting a full considered decision of an Industrial Tribunal on the facts and the law. As at present advised, we are satisfied that it is arguable that a police constable falls within the provisions of section 13 of the 1996 Act. As we have said, the relationship between the unique position of a police officer and social legislation of the kind with which we are concerned is not entirely straightforward, as the different statutory provisions demonstrate.If we had allowed this point to be argued at a full hearing, we would then have been forced to ask the Industrial Tribunal to adjourn the proceedings. If the Tribunal decide the facts in one way, the point will become moot. We do not willingly decide difficult legal issues on some kind of preliminary basis. All we need say is that if the Chairman had thought the point was arguable she would, we are sure, have allowed the application for leave to amend. We take the view that the point is arguable and that leave to amend should be granted. We are not seeking to say that, if the point arises, a tribunal will not be able to reach the same decision as that of the Chairman. We express no view as to the decision which this court would have reached had the matter proceeded to a full hearing. The Industrial Tribunal will wish to consider the question for themselves in the light of the arguments presented to them.The justice of the case will best be met if the fact finding tribunal hears the case being presented by the applicant on the basis of her Originating Application as amended.To that extent we allow the appeal and direct that her complaint under section 13 be included within her Originating Application to the Industrial Tribunal, which will consider essentially the same evidence which is relevant to the claim under the Equal Pay Act ; namely whether the arrangements which were discussed had matured into a binding agreement or not.