AM v WC & Anor [1999] UKEAT 130_99_0605

EAT
AM v WC & Anor
[1999] UKEAT 130_99_0605 · 1999-05-06
For SPV For WC JOHN LOFTHOUSE (of Counsel) and MARK TRAFFORD (of Counsel) Instructed by: Mr S T Q Walker Messrs Talbot Walker Solicitors 16 Bridge Street Andover Hampshire SP10 1BJ JOHN LIVESEY (of Counsel) Instructed by: Mr I R Gibbons County Secretary and Solicitors Department Wiltshire County Council Bythesea Road Trowbridge Wiltshire BA14 8JNMR JUSTICE MORISON (PRESIDENT) : Both SPV and AM are police officers and WC is their local constabulary. As we are in the situation of having two appeals by different parties, we feel it is both more convenient and appropriate to refer to the parties as they were before the Employment Tribunal. AM will be referred to as the "applicant", WC as the "first respondent" and SPV as the "second respondent".

Background

The facts in this matter can be dealt with briefly. The applicant is a woman police constable and the second respondent was her sergeant. By an originating application presented on 26 November 1997, amplified in written further and better particulars filed on 11 August 1998, the applicant brought a complaint of sex discrimination against both the first and second respondents under the Sex Discrimination Act 1975 ["the Act"] and the Equal Treatment Directive ["the Directive"]. The applicant alleged that the second respondent had subjected her to a course of sexual harassment between 7 July 1997 and 3 September 1997. Directions were given by the tribunal at interlocutory hearings on 21 July 1998 and on 23 November 1998. The matter was set down for a three day hearing starting on 14 December 1998.On the morning of the first day, counsel on behalf of the second respondent raised a preliminary point as to whether or not he should be a party to the proceedings. Counsel argued that under the Act a police officer could not pursue a claim of sexual discrimination against another individual officer. Having considered the issue the tribunal, in a decision promulgated on 22 December 1998, dismissed the second respondent from the proceedings. The tribunal accepted that the Sex Discrimination Act 1975 did not apply as between the applicant and the second respondent as he was not an employee within the meaning of sections 41 or 42(2) of the Act. They also found that the claim against the applicant was outside the ambit of the protection against discrimination imposed by section 17(1) of the Act. It is from that decision that the applicant appeals.The tribunal ordered that the second respondent pay the costs thrown away as a result of the preliminary point being taken at the last minute, causing an adjournment of the three day hearing. It is from that order that the second respondent appeals.

The issues

On this appeal we must consider two discrete questions:1. Is a police officer, acting in the course of his employment, liable for an unlawful act of sex discrimination committed against a fellow officer?2. Were the tribunal entitled to award costs against the second respondent, because the legal point was taken so late in the day?We shall deal with the issues and arguments of the parties in turn. The first question raises a point of law of some importance.1. The Sex Discrimination IssueSections 6 and 17 of the Act come under the section "Part II, Discrimination in the Employment Field". They provide inter alia:

"6 Discrimination against applicants and employees

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -...(b) by dismissing her, or subjecting her to any other detriment.17 Police(1) For the purposes of this Part, the holding of the office of constable shall be treated as employment -(a) by the chief officer of police as respects any act done by him in relation to a constable or that office;(b) by the police authority as respects any act done by them in relation to a constable or that office.(5) Any proceedings under this Act which, by virtue of subsection (1), would lie against a chief officer of police shall be brought against the chief officer of police for the time being or, in the case of a vacancy in that office, against the person for the time being performing the functions of that office;…"Sections 41 and 42 come under "Part IV, Other Unlawful Acts". Section 41 reads as follows:

"41 Liability of employers and principals

(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this Act as done by that other person as well as by him.(3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."Section 42 provides inter alia:

"42 Aiding unlawful acts

(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.(2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 41 (or would be liable but for section 41(3)) shall be deemed to aid the doing of the act by the employer or principal."

The Parties' arguments

The applicant was ably represented by Laura Cox QC. She said that the question at issue had never been considered before and there was no direct authority on the point. However, she pointed out that the point could have been taken in a number of reported decisions such as Lincolnshire Police v Stubbs [1999] IRLR 81. It was her submission that the point had not previously been taken because it was manifestly bad; and that if it were a good one it would emasculate the workings of the Act and the plain intention of Parliament that police authorities and police officers should be treated no differently from other employers and employees in relation to unlawful discrimination at the workplace.Section 17 achieved that objective together with sections 41 and 42. She submitted that section 17 did not say "for the purposes only of this part" and thus there is nothing expressly in the Act which supports the argument which found favour with the Employment tribunal. She referred to similar provisions in the Race Relations Act 1976.If the second respondent were correct, then an officer in the position of the applicant could only succeed in her claim if the chief officer of police had committed the unlawful act. To give effect to the Act, section 41 must be referred to since it is that section which creates vicarious liability and provides the employer with a special defence. Instead, Ms Cox urged us to construe the Act in a way which would give effect to its purpose: to render unlawful acts of sex discrimination and to promote equality of opportunity between the sexes in accordance with the Directive. When faced with a choice, the courts always adopt an 'inclusive' approach both to the Act and to the Race Relations Act. Reference was made to Jones v Tower Boot Co [1997] IRLR 168 .In support of her argument that Parliament intended the Act to extend to police forces, and to treat them in the same way as other employers, our attention was directed to passages in Hansard 1 July 1975. At page 100 Lord Harris of Greenwich made the following observations:
"I should make it clear, however, that we have not sought to exclude Home Office services from the scope of this legislation. In particular, both the police and the prison service are covered. As regards the police, there is complete integration in the Metropolitan Police. Outside London there are separate establishments for men and women police officers…Under the terms of the Bill, the police will have to consider applicants for posts solely on the qualifications required for the service or for the particular post, and select the best one, man or woman. A number of jobs in the police and the other Home Office services may fall within the scope of Clause 7 of the Bill, but the point is that we are subjecting these services to exactly the same tests as any other employer."
In relation to the other parts of the Bill Lord Harris said:
"Other clauses deal with discriminatory instructions and practices, with pressure to discriminate and with cases of vicarious liability."
It was the applicant's argument that there was never any intention to exclude individual police officers from liability.She also submitted that the tribunal had erred by failing to consider the applicant's claim under Article 5(1) of the Directive.Mr Lofthouse, submitted on behalf of the second respondent that an individual police constable obtained the benefit of protection under the Act but not the burden as they could not be personally liable as employees under sections 41 and 42 of the Act. His argument was that section 63 of the Act created two species of liability; direct and derivative. Direct liability was governed by the principles contained in Part II of the Act and derivative liability was contained in sections 41 and 42 which were within Part IV of the Act. Section 17 specifically gave employees direct protection from discrimination and allowed actions to be brought against either the chief officer of police or against the Police Authority, but did not give rights between employees personally. Mr Lofthouse also argued that as the introduction to section 17 referred to "this Part", it meant that the protection provided under that section only applied to direct liability under Part II of the Act and did not apply to derivative liability under Part IV of the Act. As the Act was in clear terms as to the scope of liability against the police, Mr Lofthouse submitted that the tribunal was entitled to consider that they could not adopt a purposive approach which would distort the clear language used by Parliament.We were also urged not to take a blinkered, employment law-based, approach to the question of whether an employee was protected against discrimination committed by another employee. It was argued that the applicant had many other forms of potential redress against the second respondent: she could bring a common law action for assault; a claim under the Protection from Harassment Act 1997; invoke the disciplinary and equal opportunities policies contained within the police force itself. There was therefore no need to 'create' a new form of redress under the statute when none was intended.The police authority supported the applicant's arguments. They would wish to avail themselves of the defence under section 41(3). If that section did not apply, then that defence would not be available to them.

The Decision

As the parties pointed out, there is no direct authority on this issue and as far as we know it has not been argued before. For that reason we have not found any of the authorities referred to us in the course of argument to be of assistance in making our decision. We would add that we do not consider that because this legal point has not been taken before it is bound to be wrong; though the Court is instinctively reluctant to conclude that such a point has been overlooked by counsel and the Court on numerous previous occasions.In our judgment, Parliament cannot have intended that section 17 of the Act applied in the way suggested by the second respondent. The second respondent's submission was wrong both in terms of public policy and on the plain reading of the statute. Part II of the Act is dealing with discrimination in the employment field. There are other parts of the Act which concern, amongst other matters, the provision of services to the public. It was not Parliament's intention to make the police authorities liable for acts of discrimination committed by constables whilst carrying out their policing duties vis a vis members of the public. By including the police service within the employment field it was understandable, and necessary, that the draftsman included within section 17 a clause making it clear that the section was for the purpose of that part. Section 17 is there to bring the police within the Act as regards the employment field and serves to identify the employer who is the person liable under section 6. Without section 41, we agree with Ms Cox that the protection afforded by section 6 would be largely emasculated. Section 41 is there to protect the employer from liability for acts committed by their staff outside the scope of their employment, and to give the employer a special defence. Section 42, which is the 'partner' to section 41, makes the employee liable even where the special defence exists. Thus, without section 41, there would be no vicarious liability and an employer, such as a company, would never be liable. Equally, without section 41, a police constable would effectively be unprotected from unlawful discrimination since it would be rare indeed that the chief constable or the police authority would have committed the acts complained of.The argument on behalf of the second respondent that he cannot be liable under section 42 because he cannot aid and abet his own acts of discrimination betrays a misunderstanding of the way the Act works. The correct interpretation of the section is that liability arises where the employee aids and abets his employer's vicarious liability. The structure of the Act is to place responsibility for unlawful discrimination in the workplace upon the employer [section 6(2)] and for pre-employment discrimination, upon the prospective employer. Since employers normally act through their servants and agents, section 41 defines the circumstances in which the activities of persons on behalf of the employer will create liability. Section 42 makes the employee personally liable, as well as the employer.We note that both sections 41 and 42 state that they apply "for the purposes of this Act" and no limitation is made as to which part of the Act they apply, as Mr Lofthouse must argue. There is nothing in the Act to suggest that those two sections do not apply to employees of the police force or that the sections in Part IV of the Act are to be read disjunctively from the rest of the Act. To read the Act in any other way removes all sense from the provisions of section 17. We accept Ms Cox's argument that if the Act was construed as Mr Lofthouse contends, liability would only lie against the chief officer of police or against the police authority for acts of discrimination committed by them in person. Obviously the police authority operates through individuals for which the employer, the police authority, would be vicariously liable under section 41. If the second respondent was right there would be no vicarious liability under section 41, and it begs the question as to how the police authority could become a target under the Act. The suggestion that the common law rules as to vicarious liability could be imported into the Act disregards the fact that the Act creates new rights and obligations and provides a complete code. Further, it would be extraordinary if the police authority could be vicariously liable for acts of their servants or agents yet would be deprived of the special defence under section 41(3). The purpose of section 41(3) is obviously to encourage employers to take all reasonable steps to prevent discrimination, which the common law rules on vicarious liability would not provide for. There is no indication in the legislation that Parliament intended the police to be singled out in this way. Indeed, such a result would run counter to the intention of Parliament as evidenced by the citation from Hansard.For these reasons we allow the applicant's appeal and order that the second respondent be reinstated as a party to the proceedings. The point being argued was, we think, doomed to failure and the explanation for the fact that it has not been taken before may well be that no-one else thought it arguable. Had the Employment Tribunal been pre-warned that this point was going to be taken and had had an opportunity to reflect on it, no doubt their decision would have been different.2. The Costs IssueMs Cox submitted that the tribunal's award of costs was a matter of fact and discretion for the tribunal which could not be overturned on appeal unless the discretion was exercised contrary to law or was manifestly unreasonable, neither of which were applicable to this case. The delay in raising the issue of whether the second respondent was a party to the proceedings was 'unreasonable' within the Employment Tribunals (Constitution and Rules of Procedure) Regulations 1993 as the case would have to be prepared by counsel and witnesses attend for a second hearing. The matter should have been raised at one of the two preliminary hearings. Because it was taken late, the trial had to be adjourned. The second respondent had an opportunity at the hearing to object to the order of costs, particularly on the grounds of financial means, and as his means were not raised before the Employment tribunal they should be disregarded by the EAT.Mr Lofthouse argued that it was wrong in principle to order a party to bear the costs of arguing a point successfully. The tribunal found that the applicant did not have a case against the second respondent, it was therefore unreasonable for the tribunal to make him pay the costs of proving that he was not a correct party to litigation. In any event there were no costs thrown away as the tribunal hearing will still proceed and the tribunal failed to make an enquiry into the second respondent's means.The issue on costs in this matter was one of fact and discretion for the tribunal and we have not been presented with any persuasive argument that its decision was wrong in law or unreasonable in the circumstances. There were two preliminary hearings in this matter before the three day trial was supposed to have begun. The Employment tribunal were fully entitled to conclude that the point should have been taken before the hearing and that it was unreasonable of the second respondent and his advisers to take it late. Thus the tribunal had power to make the order. As we understand it, the costs ordered to be paid were those 'thrown away' by the case having to be re-fixed. We are not prepared to say that the tribunal has erred in the exercise of its discretion.Accordingly the second respondent's appeal on this issue is dismissed.