MR W SPENCE v BRITISH RAILWAYS BOARD [2000] UKEAT 755_99_1610

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 755_99_1610

Case No Appeal No. EAT/755/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR W SPENCEAPPELLANT

BRITISH RAILWAYS BOARDRESPONDENT

Before

Mr Justice Charles Mr J R Crosby

Sir Gavin Laird

Date 16 October 2000

[1]APPEARANCES For the Appellant IN PERSON For the Respondent MR ADRIAN LYNCH QC Instructed By: Mr A Finlay Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London CC1Y 4 TY MR JUSTICE CHARLES : This appeal raises the point whether section 200 of the Employment Rights Act 1996 applies to a Police Sergeant in the British Transport Police Force. The appeal is against a decision of an Employment Tribunal sitting at London (North) on 10 May 1999 that section 200 of the Employment Rights Act applied and accordingly it had no jurisdiction to hear the complaint of unfair dismissal by the Appellant, Mr Spence. The Respondent to the appeal and before the Employment Tribunal is the British Railways Board. I am delivering this judgment at the end of the argument and will say immediately that our conclusion is that this appeal is dismissed.

[2]Section 200 of the Employment Rights Act provides, so far as is relevant, as follows. "(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 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."

[3]The exception provided for by section 200(1) therefore applies to a defined type of employment and to persons engaged therein. The definition of "police service" is in two parts. As a matter of language a person will not fall within both parts because subsection (2)(b) refers to "service in any other capacity". In his Notice of Appeal the Appellant criticised the Employment Tribunal for concluding that he was covered by both parts of subsection (2). We accept that there is some merit in this criticism, having regard to the language of the Extended Reasons, where the Employment Tribunal say:

"Mr Spence is a constable by virtue of the fact that he is a member of the British Transport Police which is maintained by virtue of the British Transport Commission Act 1949 and therefore falls within section 200(2)(a), but also falls within section 200(2)(b) by virtue of the provisions of section 53(1)(b) of the British Transport Commission Act 1949."

[4]This part of Mr Spence's argument was not pursued before us orally. In our judgment Mr Spence was correct not to pursue that part of his argument because that criticism cannot found a successful appeal. This is because if Mr Spence is covered by either of the subsections the Employment Tribunal has no jurisdiction to hear his complaint of unfair dismissal. Further, as I have said, such criticism is based on a literal approach to the Extended Reasons which is not the approach taken by this Tribunal.

[5]In our judgment, although it is not necessary for us to do so, it is fair to read the Extended Reasons as a finding by the Employment Tribunal that Mr Spence was covered by subsection 2(a) but if they were wrong about that, he was covered by subsection 2(b). This is the way in which the appeal has been argued before us. In our judgment that argument reflects a correct approach to the section and to succeed on this appeal Mr Spence has to show, and indeed by his argument he accepts that he has to show, that he is not covered by either of the subsections.

[6]The term "constabulary" is not defined in or for the purposes of the Employment Rights Act, the normal meaning of the word is an organised body of police or a police force. The reference to an enactment in section 200(2)(a) includes subordinate legislation and, unless the context otherwise indicates, the plural as well as the singular – see sections 6 and section 23(2) of the Interpretation Act 1978 . The Facts

[7]It is common ground that Mr Spence was a Sergeant in the British Transport Police and that his service spanned the period from 1977 to 1999. It was also common ground between the parties and, in our judgment correctly, common ground that he had a contract of employment. Section 53 of the British Transport Commission Act 1949 (the 1949 Act), as enacted, provided as follows:

"53 (1) Subject to the conditions hereinafter set forth any two justices may on the application of the Commission appoint all or so many as they think fit of the persons recommended to them for that purpose by the Commission to act as constables in on and in the vicinity of the whole of the railways harbours docks inland waterways stations wharves garages hotels works depots and other premises in England and in Wales now or hereafter belonging to leased to or worked by the Commission and the following provisions shall apply to every appointment so made:- (a) every person so appointed shall make oath or declaration in due form of law before any justice having jurisdiction in any one of the counties cities or boroughs in which such person is to act duly to execute the office of a constable; (b) every person so appointed and having been sworn or having made declaration as aforesaid shall during the continuance of his appointment have all the powers protection and privileges of a constable in respect of the exercise of his duties and may follow and arrest any person who has committed in on or in the vicinity of such railways harbours docks inland waterways stations wharves garages hotels works depots or other premises any offence for which he might have been arrested while in on or in the vicinity of the same: Provided that no such powers shall be exercised outside the limits of the premises of the Commission except in regard to matters in connection with or affecting the Commission or their undertaking; (c) any two justices assembled and acting together or the Commission may dismiss from his office or accept the resignation of any constable so appointed and thereupon all powers protection and privileges belonging to such person by virtue of such appointment shall wholly cease. No person so dismissed or resigning shall be capable of being reappointed except with the consent of the authority by whom he was dismissed or by whom his resignation was accepted; (d) the police authority of any area shall not be liable for any expense of or be responsible for any acts or defaults of such constables or for anything connected with or consequent upon their appointment and nothing in this Act shall restrict or affect the jurisdiction or powers of any such police authority or of any police force under their control; (e) a person appointed as aforesaid shall not act as a constable under the authority of this Act unless he be in uniform or provided with an authority to act as such which authority the justice before whom such person makes oath or declaration as aforesaid is hereby empowered to grant and if the constable be not in uniform he shall show such authority whenever called upon to do so. (2) Every person who immediately prior to the passing of this Act is duly appointed to act as a constable employed by the Commission shall be deemed to have been duly appointed to act in pursuance of this section as if his appointment had been made thereunder. (3) In this section the expression 'police authority' has the meaning assigned to it by section 19 of the Police Act 1946 and includes a combined police authority as defined in that section. (4) This section shall apply to Scotland with the substitution of the words 'sheriff or sheriff substitute' for the words 'two justices' and 'justice' and with the substitution of the words 'Scotland' and 'burgh' for the words 'England and Wales' and 'borough' respectively and for the purposes of such application the expression 'police authority' has the meaning assigned to it by section 12 of the Police (Scotland) Act 1946. (5) The following enactments are hereby repealed:- Section 56 (Appointment of special constables) of the Great Western Railway Act 1877; Section 65 (As to appointment of special constables) of the Great Western Railway Act 1899; Section 48 (Company may appoint special constables) of the North British Railway Act 1901; Section 104 (Amendment of section 56 of Great Western Railway Act 1877) of the Great Western Railway Act 1912; Section 72 (Railway constables) of the London and North Eastern Railway Act 1924; Section 57 (Railway constables) of the London Midland and Scottish Railway Act 1924; Section 71 (Railway constables) of the Southern Railway Act 1926; Section 107 (Constables)( of the London Passenger Transport Act 1934."

Section 132 of the Railways Act 1993 provides as follows:

"132(1) The Secretary of State may make a scheme for the organisation, control and administration of the transport police employed by the Board. (2) A scheme may only be made after consultation with the Board and with - (a) persons to whom the Board is for the time being making available the services of transport police or (b) such bodies or persons appearing to the Secretary of State to be representative of those persons as he may consider appropriate. (3) A scheme may make provision enabling the Board to make an agreement - (a) with any such person as may be specified in the scheme, or (b) with any person falling within any such class or description of person as may be so specified, for making the services of transport police available to that person for such period, to such extent, and on such terms, as may be specified in the agreement. (4) A scheme which makes such provision as is mentioned in subsection (3) above shall also make provision for the method of settling any dispute in relation to transport police which may arise between the Board and the person with whom any such agreement as is mentioned in that subsection is made. (5) … (6) A scheme may contain such supplemental, incidental, consequential or transitional provision as the Secretary of State may consider appropriate. (7) A scheme may make modifications consequential on its provisions in section 53 of the British Transport Commission Act 1949. (8) Schedule 10 to this Act shall have effect for the purpose of making provision consequential upon the provisions of this section. (9) The power to make a scheme shall be exercisable by statutory instrument, and a statutory instrument containing a scheme shall be subject to annulment in pursuance of a resolution of either House of Parliament. (10) In this section - (a) 'transport police' means constables appointed under section 53 of the British Transport Commission Act 1949; and (b) 'scheme' means a scheme made under subsection (1) above."

The "Board" is defined by section 151 as the "British Railways Board".

[8]The Railways Act 1993 (see section 132 and schedule 10) amended section 53 of the 1949 Act as follows:

"1(1) Section 53 of the British Transport Commission Act 1949 (which makes provision in relation to transport police, including provision with respect to their appointment, dismissal and resignation) shall in its application to England and Wales be amended in accordance with the provisions of this paragraph. (2) For subsection (1) of that section, other than the proviso, there shall be substituted - '(1) Subject to the provisions of subsection (2) of this section, any two justices may, on the application of the British Railways Board acting in pursuance of a scheme made by the Secretary of State under section 132 of the Railways Act 1993, appoint all or so many as they think fit of the persons recommended to them for that purpose by that Board acting as aforesaid to act as constables throughout England and Wales'. (3) … "

Section 53 has been further amended by the Transport Police Jurisdiction Act 1994 . Those amendments relate to the proviso in sub-section (1) and other matters. It is not necessary to set them out in this judgment.

[9]As appears therefrom section 132 of the Railways Act 1993 gives the Secretary of State a statutory power to make a scheme for the organisation, control and administration of the transport police who are employed by the Board and appointed as constables by two Justices, pursuant to the statutory power conferred by section 53 of the 1949 Act (as amended).

[10]The statutory power to make such a scheme was previously conferred by section 69 of the Transport Act 1962 which like section 132(7) of the Railways Act 1993 provided by section 69(4) that a scheme made under that section could make modifications consequential on the provisions of the scheme in section 53 of the 1949 Act.

[11]Section 69(1) of the Transport Act 1962 also provided, like section 132(10) of the Railways Act 1993 , that references therein to transport police are references to constables appointed under section 53 of the 1949 Act.

[12]The scheme for the organisation of the transport police made under section 69 of the Transport Act 1962 was the British Transport Police Scheme 1963 . That 1963 scheme was amended in 1992 and we shall refer to it as "the amended scheme". The amended scheme was continued in force and treated as if it was made under section 132 of the Railways Act 1993 by paragraph 3 of schedule 10 to the Railways Act 1993 which provided as follows:

"3(1) In the Transport Act 1962, sections 69 (organisation of transport police), 70 (adaptation of certain references to, and relating to, transport police constables) and 71 (terms and conditions of employment of transport police) shall cease to have effect. (2) Unless and until the Secretary of State by order revokes the British Transport Police Force Scheme 1963, that Scheme shall continue in force and shall be treated as if it had been made under section 132 of this Act; but the Secretary of State may, after consultation with the Board and with - (a) persons to whom the Board is for the time being making available the services of transport police, or (b) such bodies or persons appearing to the Secretary of State to be representative of those persons as he may consider appropriate, by order make such amendments in that Scheme as he thinks fit. (3) In sub-paragraph (2) above, 'the British Transport Police Force Scheme 1963' means the scheme for the organisation of transport police which is set out in the Second Schedule to the British Transport Police Force Scheme 1963 (Amendment) Order 1992 (being an order amending that scheme as it was set out in the Schedule to the British Transport Police Force Scheme 1963 (Approval) Order 1964)."

[13]It follows that from 1977, the year that Mr Spence's service commenced, and earlier statute has provided:(a) that the transport police are constables appointed under section 53 of the 1949 Act, and

(b) that the transport police have been organised by and pursuant to a statutory scheme. It follows that: (a) the transport police are constables appointed pursuant to a statutory power, and (b) as a body and individuals the transport police are organised pursuant to a statutory scheme.

[14]Paragraph 2 of the amended scheme provides as follows:

"2. BRITISH TRANSPORT POLICE FORCE (a) The transport police shall be organised in a single force for the Railways Board but the services of the Force shall subject to the provisions of this Scheme be made available by the Railways Board to meet the reasonable requirements (if any) of the other Boards and the Railways Board shall use their best endeavours to meet the reasonable requirements of those Boards. (b) The Force shall be known as 'The British Transport Police Force'. (c) Subject to the provisions of this Scheme all transport police hereafter appointed shall be appointed and employed by the Railways Board and all transport police now appointed shall continue to be employed by the Railways Board. (d) The property and rights and liabilities which vested in the Railways Board under Section 31(2) of the Transport Act 1962 as being comprised in that part of the undertaking of the British Transport Commission which constituted the British Transport Commission Police Force shall so far as the same are still vested in the Railways Board continue to be so vested but the Railways Board and each of the other Boards may from time to time enter into agreements for the transfer to such other Board of any of the said property in any case where in the opinion of the Boards concerned such transfer is necessary or convenient for the purposes of this Scheme."

As can be seen therefrom it provides that the Force shall be known as the "British Transport Police Force"

[15]Paragraph 2 of the original scheme was in the same terms, save that it referred to "requirements" rather than to "reasonable requirements". In the definition section of the amended scheme it is provided that the Railways Board means the British Railways Board. Accordingly, paragraph 2 of the amended scheme provides that the transport police are to be organised in a single force (known as the British Transport Police Force) for the British Railways Board and that all transport police are appointed and employed by the British Railways Board. The fact that they are so employed is confirmed by section 132(1) Railways Act 1993 and section 133 thereof makes provisions as to the terms and conditions of employment of transport police.

(a) of the Employment Rights Act 1996

[16]Having regard to the above, in our judgment it is clear that the transport police who make up the British Transport Police Force are a constabulary maintained by virtue of an enactment and Mr Spence is employed under a contract of employment in police service (as defined by section 200(2)(a)). The word "maintained" is not defined by or for the purposes of the Employment Rights Act. It is an ordinary English word and having regard to its ordinary meaning, in our judgment, it clearly covers the British Transport Police Force which, as we have set out, is organised under a statutory scheme which provides for the appointment and employment of its members (i.e. transport police) by the British Railways Board and the appointment of its members as constables pursuant to section 53 of the 1949 Act.

[17]In this context Mr Spence's argument is that the British Transport Police Force, and thus transport police, are not maintained by virtue of an enactment and in support of that argument he refers in particular to sections 1 and 2 of the Police Act 1996 and particularly to section 2 which provides as follows:

"2 A Police Force shall be maintained for every police area for the time being listed in schedule 1."

He says, correctly, that one searches in vain in the relevant legislation relating to the transport police for a similar provision imposing a duty to maintain a police force. From that he argues that transport police are not members of a constabulary "maintained" by virtue of an enactment.

[18]The underlying point in that argument is that to be "maintained" by virtue of an enactment you have to be maintained pursuant to a duty imposed by an enactment. In our judgment that argument is incorrect. The ability of the British Railways Board to employ transport police (being people who are appointed as constables), and the appointment of those persons as constables, derive entirely from statute and powers conferred by statute. In our judgment it follows that the British Transport Police Force (and transport police) are maintained by virtue of an enactment.

[19]The conclusion we have reached is in line with, and is supported by, the decision of this Tribunal in Commissioner of Police of the Metropolis v Lowrey Nesbitt

[1999] ICR 401

, and in particular to the passage at 403 H to 404 B, where the President said this:

"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 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."

It is apparent from page 408 G of the judgment in that case that in it this Tribunal considered section 200 of the Employment Rights Act with some care. Accordingly the passage we have cited carries weight for present purposes, albeit that the question that we have to decide in this case was not the question directly before the Employment Appeal Tribunal in that case.

[20]Our conclusion also accords with the a statement in the judgment of Henry LJ in R v Chief Constable of British Transport Police Ex parte William Farmer , transcript 30 July 1999 at page 5 B to D, which is in the following terms:

" … Section 31(2)(e) of the Transport Act 1962 provided that the British Transport Commission Police Force be transferred to the Board. Consequently the Transport Police are employed by the British Railways Board and all terms relating to, inter alia, the conditions of service of the Transport Police must be referred to a conference set up under Section 133 of the Railways Act, 1993.

(a) "

However we accept, as was recognised by this Tribunal on the preliminary hearing, that it seems that the issue that is before us today was not directly before the Court of Appeal on that occasion. We understand that that is accepted by the British Railways Board.

(a) of the Employment Rights Act 1996

[21]If we are wrong in our conclusion that section 200(2)(a) applies, in our judgment it is clear that subsection (b) would apply. This is because it is common ground and, indeed, necessarily follows from section 53 of the 1949 Act that Mr Spence was a person who has the powers or privileges of a constable.

[22]As to the application of this subsection 200(2)(a) Mr Spence argued that he was employed as part of a Police Force, albeit, as he submitted, one that was not maintained by virtue of an enactment and therefore he said he was not employed "in any other capacity" as, for example, someone employed by Customs and Excise would be.

[23]In our judgment that is not a permissible reading of the two subsections. The reference in subsection (b) to "in any other capacity" must mean in any capacity other than that referred to in subsection (a) which would include all the requirements of subsection (a). So if Mr Spence is right and he is not a member of a constabulary maintained by virtue of an enactment for the reason he says, namely that the British Transport Police Force (and thus transport police) are not maintained by virtue of an enactment, he is in service in another capacity and he has the powers and privileges of a constable. Therefore he would fall within subsection (b).

[24]As I hope is clear from the earlier parts of this judgment, it is our view that he is within subsection 2(a) rather than 2(b). Miscellaneous

[25]Finally, I mention two things, firstly on the preliminary hearing reference was made to the possibility of Parliamentary material being put before this Tribunal, pursuant to the decision in Pepper v Hart

[1993] AC 593

. No such material has been put before us and, in our judgment, there was no need for any such material to be put before us because the test in Pepper v Hart leading to the examination of Parliamentary material is not satisfied in this case. Secondly, we would like to pay tribute to Mr Spence both for his written and oral argument. He has, in both, stuck to his points and has not ranged over other areas. He put his points clearly. I hope that we have dealt with them. In our judgment they are wrong. Accordingly, we dismiss this appeal.