Commissioner Of Police For Metropolis v Lowrey-Nesbitt [1998] UKEAT 952_97_1307

EAT
Commissioner Of Police For Metropolis v Lowrey-Nesbitt
[1998] UKEAT 952_97_1307 · 1998-04-03
MR JUSTICE MORISON (PRESIDENT) : This appeal raises the question whether a police officer serving in the Metropolitan Police Force is a 'worker' within the meaning of the Employment Rights Act 1996 [ 'the Act' ] so as to enable him to present a claim in respect of an alleged unlawful deduction from his wages under Part II of the Act.The Industrial Tribunal concluded that he was; we have been persuaded by an able and sustained submission on behalf of the Commissioner that he is not.A worker is defined as a person who has entered into or works under a contract of employment or "any other contract..." It is the appellant's case that the relationship between the Commissioner and a serving police officer is not governed by contract but rather by statute and that this reflects the special status which police officers enjoy in the eyes of the law.The reasoning of the Industrial Tribunal was largely based, as we read it, on the provisions of Part XIII of the 1996 Act and in particular on section 200. That section provides that:
"(1) Sections 8 to 10, Part III, sections 44, 45, 47, 50 to 57 and 61 to 63, Parts VII and VIII, sections 92 and 93, Part X and section 137 do not apply to employment made under a contract of employment in police service or to persons engaged in such employment.

(2) In subsection (1) 'police service' means-

(a) service as a member of a constabulary maintained by virtue of an enactment, or(b) subject to section 126 of the Criminal Justice and Public Order Act 1994 (prison staff not to be regarded as in police service), service in any other capacity by virtue of which a person has the powers or privileges of a constable."The statutory rights to which section 200(1) refers are the right to an itemised pay statement; rights to guaranteed payments; rights not to be subjected to any detriment by reason of health and safety at work issues, Sunday working or being a representative; rights to time off work for certain purposes; rights during periods of suspension from work; maternity rights; rights to written statements of reasons for dismissal; right not to be unfairly dismissed; and the right to be permitted to return to work after childbirth. The section says that these rights do not apply "to employment under a contract of employment in police service or to persons engaged in such employment."It was the Industrial Tribunal's view that a Metropolitan police officer fell within the provisions of section 200(2(a). The principal argument which they accepted was that there would have been no need for this exclusion if police officers would not otherwise have been covered by the statutory provisions. But that argument is only valid if all police officers would have been covered, absent the exclusion. If some police officers would have been covered and some not, then the argument has no force.The position in law is that service as a member of a constabulary maintained by virtue of an enactment is apt to include service in one of the four statutory police forces not maintained by Home Office Grant, namely British Transport Police, Ministry of Defence Police, Royal Parks Constabulary and United Kingdom Energy Authority Police. As a matter of law, an officer engaged in the British Transport police is employed by the British Railways Board, under a contract of service. Such a police officer would, but for the exclusion contained in section 200, have been entitled to the excluded rights. Therefore, the statutory provisions make perfectly good sense as they stand, leaving quite open the question whether a member of what one might call the 'normal' police force is a person who would have enjoyed the rights as 'an employee' [under a contract of service] had there been no exclusion.Section 64(5) of the Disability Discrimination Act dis-applies Part II in relation to members of the four named constabularies. The Act applies to employment, widely defined, but there must be a contract of service or a contract personally to do work. If the Industrial Tribunal were right, a police constable in normal police service, and their 'employers' [presumably the police authorities] would be subject to the Act's provisions, whereas those employed in the named constabularies would not be. It is difficult to conceive of any policy reason for such a state of affairs. The most likely explanation, absent some obvious policy reason, is that Parliament did not consider that those in normal police service would be regarded as in employment in the first place. Reference to Hansard reveals this to be the case.The position of police officers [and we use that expression to mean those police constables who are not employed within the four identified statutory constabularies] has been considered by the Courts on a number of occasions.In Fisher v Oldham Corporation [1930] 2 KB 364 , it was argued that the watch committee was the employer of the police in their borough and that there was vicarious liability. In the course of his judgment, McCardie J said this, at page 371:
"Prima facie, therefore, a police constable is not the servant of the borough. He is a servant of the State, a ministerial officer of the central power, though subject, in some respects, to local supervision and local regulation."
A little later, at page 375/376, the judge considered a decision of the Court of Appeal called Wallwork v Fielding [1922] 2 KB 66 . There a constable had successfully sued the watch committee in the County Court for his wages, but the Court of Appeal allowed the committee's appeal. The point at issue turned on the proper interpretation of a provision in the Municipal Corporation Act of 1882. In the course of his judgment in the Court of Appeal, Warrington LJ said, apparently in an obiter dictum , that:

"The relations are those of employer and employee."

McCardie J said, at page 376:
"This ... is only an obiter dictum . ... The words, of course, go too far if they are meant to imply that the relation between a corporation and a police officer is the normal relation of master and servant. Only in a special and limited sense can a police officer be said to be in the employ of the municipal corporation. With respect to the action for "wages" as they are called in that case ... I think the point may well be raised some day whether any such action will lie in so far as it is framed upon an alleged contract of service in the ordinary sense. Any such action may perhaps be more properly brought on a special footing - namely on the duty of the defendants to pay such sum as is due by virtue of statutory obligation plus a certain degree of contractual relationship."
It can be said that this is the high water mark for the proposition that a constable has a contract pursuant to which he is entitled to receive his wages and other benefits. In a most general sense, there are aspects of the conditions of service of a constable which would fit well into a relationship governed by a contract of employment. A constable is entitled to pay, other benefits and pension rights. He may well be required to work specified duties at specified times, and to work a specified number of hours per week; he will be subject to agreed procedures for dealing with discipline and suspension. In many respects he is in an equivalent position to that of an employee whilst he is at the station where he is based. To borrow a felicitous expression used by Lord Lowry in another context in Roy v Kensington & Chelsea and Westminster Family Protection Committee [1992] 1 AC 624 at page 629, the relationship between a police constable and the chief officer of police has "contractual echoes".However, the case law is clear, as at 1998, that a police constable's status is governed by statute and that he owes allegiance to the community at large, through his oath of office, rather than through private contractual rights and obligations.There are four relevant cases following that of Fisher to which we would make reference.The first is Attorney General for New South Wales v Perpetual Trustee Co (Ltd) [1955] AC 457 . Could a police authority sue a tortfeasor for the loss to them of the services of one of their police constables? The Privy Council held that the action could not be maintained.At page 489, they said:
"Their Lordships can now express their final opinion upon the case. They repeat that in their view there is a fundamental difference between the domestic relation of servant and master and that of the holder of a public office and the State which he is said to serve. The constable falls within the latter category. His authority is original, not delegated, and is exercised at his own discretion by virtue of his office: he is a ministerial officer exercising statutory rights independently of contract. The essential difference is recognised by the fact that his relationship to the Government is not in ordinary parlance described as that of master and servant ... it would not, in their Lordships view, be in accord with modern notions or with the realities of human relationships to-day to extend the action [ per quod servitium amisit] to the loss of service of one who, if he can be called a servant at all, is the holder of an office which has for centuries been regarded as a public office."
The Industrial Tribunal dealt with this case by saying that it was forty years old and that as it was dealing with a different form of action "it does appear to us that it is not necessarily relevant to current circumstances". We have to say, with respect, that we do not regard either comment as of any weight. This was high judicial authority, cited with approval by the Court of Appeal in 1989, and which expressed principles of general application.The second case is Sheikh v Chief Constable of Greater Manchester Police [1989] ICR 373 , where the Court of Appeal held that a special constable was not employed under a contract of employment and, thus, did not fall within the definition of an employee within section 78 of the Race Relations Act 1976, as he was not employed under a contract to execute work or labour; but, further, that as he was the holder of the office of constable he fell within section 16 of that Act which provided that the holding of such office was to "be treated as employment". Leaving aside the position of a special constable, a police officer was clearly regarded by Parliament as not being in employment: hence the need for section 16 to bring them within the ambit of the legislation.The Industrial Tribunal dealt with this case on the basis that what was said in the passage to which we have referred was obiter to the decision itself and related to a special constable. Again, with respect, neither point is a valid one. The Court of Appeal was concerned with the question whether a special constable was an employee; if a special constable was not, then it would have been strange indeed had a full time constable been one.As Croom-Johnson LJ put it at page 376:
"At common law a constable is employed by nobody..... Accordingly, section 4 of the Race Relations Act 1976, which deals with discrimination in relation to employment, cannot be used to apply to a police constable by making use of the definition of "employment" set out in section 78, because the type of contract which is there referred to is a contract of employment which does not cover him."
The third relevant authority is Farah v Commissioner of Police of the Metropolis [1997] 1 AER 289 , to which the Industrial tribunal's attention was not drawn. The Court of Appeal's judgment was given on 9 October 1996. The Plaintiff brought an action against the Commissioner for Police alleging that he was vicariously liable for the torts committed by police officers which included the statutory tort of unlawful discrimination under the 1976 Act. At page 294 e, Hutchison LJ noted that:
"Mr Seabrook QC invites us to consider the scheme of the 1976 Act He makes the following points: (a) It is implicit in s.16(1) (and indeed s.48 of the 1964 Act [the Police Act 1964, now replaced by the Police Act 1996] that there is no relationship of employer/employee between the chief officer and constables. This is common ground-it is as Mr Nicol QC for the Plaintiff concedes well-established that police constables are office holders not employees."
And at page 305 h, Otton LJ said:
"It is ingrained in the law of the Constitution that police constables are office holders; there is no relationship of employer and employee. In order to provide a remedy to a police officer who is discriminated against in the field of employment ... the 1976 Act has a special provision in section 16."
It will be seen that the point at issue was conceded, but obviously rightly so in the Court of Appeal's view.The last case, is Quinn v Ministry of Defence Transcript 28 November 1997 , where one of the issues for the Court of Appeal was whether an enlisted member of the Royal Navy enjoyed the benefit of a contract of employment with the Crown. In giving the judgment of the Court,

Lord Justice Swinton Thomas said, at page 8:

"I turn, then, to Mr Langstaff's submission that there is a contract of employment or a contract of service between the Plaintiff, who was at the material time a serviceman in the Royal Navy, and the Crown. The Plaintiff's conditions of service were governed by King's Regulations."
Having reviewed a number of authorities, the learned

Lord Justice continued:

"It is true as Mr Langstaff submitted that a Police Officer is a holder of an Office which a serviceman in the Armed Forces is not but the same policy considerations are likely to apply to both forms of service.....The first and obvious point to be made is that there is a distinction to be drawn between a Civil Servant and a Serviceman in the Armed Services. A glance at the terms of employment set out in the Staff Handbook of the Department under which Mr Nangle was employed and the King's Regulations which governed the Appellant's service will show how very different the terms were....For my part I would have no doubt at all that when Mr Quinn enlisted in the Royal Navy pursuant to the King's Regulations neither he nor the Crown had any intention to create legal relations. Further, as a matter of public policy, following the decisions to which I have referred there is binding authority that there is no such contract. In relation to members of the Armed Forces, as with Police Officers, I can see no reason to find that those long standing public policy considerations should be changed."
It seems to us that a fair reading of these cases leaves no room for doubt as to what the position is. Whether as a matter of public policy, or because of the nature of his duties as a constable who has taken an oath, or because a police officer is an office holder, there is no room for any further argument short of the House of Lords for the proposition that a police officer is in an employment relationship with anyone.This conclusion is strongly re-inforced by the statutory framework which indicates Parliament's acceptance that, absent some express provision, a police constable [other than a constable serving in one of the statutory forces] is not someone who works under a contract for personal services or a contract of employment. The Police Act 1996 provides that the chief officer of police is liable "in like manner as a master is liable in respect of torts committed by his servants in the course of their employment". If constables were employees this provision would have been unnecessary. Further, the Police (Health and Safety) Act 1997 provides that "a person who otherwise than under a contract of employment holds the office of constable shall be treated as an employee...". Section 2 of that Act amended the Health and Safety at Work Act 1974 by providing that:
"(bb) a person holding the office of constable is at work throughout the time he is on duty but not otherwise."
There is a further deeming provision in section 3 of the Act. And there are the provisions of the Disability Discrimination Act and what was said in Parliament about police constables.In summary, therefore, a constable is an office holder. The terms on which he serves are governed by statute and statutory instrument. Section 50 of the Police Act 1996 empowers the Secretary of State to make "regulations as to the government, administration and conditions of service of police forces". Subsection (2) specifies, without prejudice to the generality of the Secretary of State's powers, to make provision in relation to all the terms and conditions of service that might otherwise have been contained in a written contract of employment, including his hours of duty, pay and allowances and disciplinary procedure. The provisions of the Sex Discrimination Act and Race Relations Act have subjected police constables to their protection; the Disability Discrimination Act has not. The general employment protection afforded to civilians working under contracts of employment is not afforded to police officers. As a matter of public policy police constables must not be constrained in the exercise of their functions by their 'employers' asserting private rights. As a matter of public policy, their relationship with the police service is governed and only governed by statute. In performing their duties they must abide by their oath of office. In these circumstances we are quite satisfied that there is no room for the implication of a contract of employment. Apart from which, in the case of the Metropolitan Police there would be a problem as to the identity of the employer having regard to the role of the receiver. But that is a minor point by comparison with the more important considerations to which we have referred.We pay tribute to the care with which the Industrial Tribunal dealt with the arguments presented to them. We have had the benefit of a more comprehensive argument than was presented to them, and were referred to additional authorities. Once the need for section 200 was properly explained, it seems to us that the answer became clear.The appeal will be allowed and a declaration made that the applicant/Respondent to this Appeal is not a worker within the meaning of the Employment Rights Act 1996 .