EAT/0310/03/RN MR K YEARWOOD (1) THE COMMISSIONER OF POLICE FOR THE METROPOLIS (2) MS A FISHER RESPONDENTS v THE COMMISSIONER OF POLICE FOR THE METROPOLIS [2004] UKEAT 0310_03_2805

"Discrimination and the police 4 The relevant provisions of the legislation are as follows. The Equal Treatment Directive ("the ETD") 76/207/EEC provides for member states to implement the principle of equal treatment of men and women in employment and occupation, now incorporated in Art 141.3 of the consolidated version of the Treaty of Rome. The Sex Discrimination Act 1975 gives effect in Great Britain to that obligation. Section 6 in Part II headed Discrimination in the Employment Field provides the forms of discrimination made unlawful by section 1: "(1) It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman - (a) in the arrangements he makes for the purpose of determining who should be offered that employment, or (b) in the terms on which he offers her that employment, or (c) by refusing or deliberately omitting to offer her that employment. (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 – (a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or (b) by dismissing her, or subjecting her to any other detriment."

"(1) For the purposes of this Part [Part II], 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."

"(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."

"(1) A complaint by any person ('the complainant') that another person ('the respondent') - (a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II, or (b) is by virtue of section 41 … to be treated as having committed such an act of discrimination against the complainant, may be presented to an employment tribunal." 5 The Race Relations Act 1976 is also relevant to the interpretation of the Sex Discrimination Act. Section 16 in Part II of the Race Relations Act corresponds to section 17, and was repealed with effect from 2 April 2001 by the Race Relations (Amendment) Act 2000 Section 4. Section 32(2) in Part IV of the Race Relations Act corresponds to section 41(2). But by section 76A of the amended Race Relations Act 1976, it is provided broadly speaking that a police constable is treated as in the employment of her chief constable, again from 2 April 2001. The Race Relations Act 1976 was modelled on the Sex Discrimination Act, which in turn was modelled on, but was in respects relevant to this appeal significantly different from, the Race Relations Act 1968. 6 The Police Act 1996, makes provision for the establishment of police forces. Section 10, provides as follows: "

"Liability for wrongful acts of constables (1) The chief officer of police for a police area shall be liable in respect of torts committed by constables under his direction and control in the performance or purported performance of their functions in like manner as a master is liable in respect of torts committed by his servants in the course of their employment, and accordingly shall in respect of any such tort be treated for all purposes as a joint tortfeasor."

"50. - (1) Subject to the provisions of this section, the Secretary of State may make regulations as to the government, administration and conditions of service of police forces. … (4) In relation to any matter as to which provision may be made by regulations under this section, the regulations may, subject to subsection (3)(b),- (a) authorise or require provision to be made by, or confer discretionary powers on, the Secretary of State, police authorities, chief officers of police or other persons, or (b) authorise or require the delegation by any person of functions conferred on that person by or under the regulations."

"including a reference to a person discharging the functions of a Chief Officer"

"Investigation procedure (3) Unless the chief officer concerned decides that no disciplinary proceedings need to be taken, the matter shall be referred to an investigating officer who shall cause it to be investigated. (4) The investigating officer shall be - (a) a member of the police force concerned, or, if the chief officer of some other force is requested and agrees to provide an investigating officer, a member of that other force; (5) Neither shall be appointed as the investigating officer for the purposes of paragraph (3) or section 85 of the Act of 1984 (formal investigation of a complaint) (a) the chief officer of the police force concerned, nor (b) any member of the police force concerned serving in the same sub-division or branch as the member subject to investigation."

"7 (1) Subject to paragraph (2), where a report, complaint or allegation is received by the chief officer which indicates that the conduct of a member of a police force did not meet the appropriate standard, the case may be referred by him to an officer, who shall satisfy the conditions in paragraph (3), to supervise the investigation of the case."

"4.10 The Chief Constable must have had no previous involvement in the case under review, and nor must he or she have any detailed knowledge of the case prior to the request for a review."

"The word "agency", to a common lawyer, refers in general to a branch of the law under which one person, the agent, may directly affect the legal relations of another person, the principal, as regards yet other persons, called third parties, by acts which the agent is said to have the principal's authority to perform on his behalf and which when done are in some respects treated as the principal's acts."

"Police disciplinary proceedings plainly involve a quasi-judicial process. They must be conducted fairly. And it is expressly provided that the chief constable must disqualify himself, notwithstanding the obligation imposed by regulation 13(1), if he has any interest in the outcome of the proceedings which does not arise from his office, and the responsibilities vested in him as chief constable."

"12 We were not invited to conduct an analysis of the cases as previously pleaded. The core concern raised by the Originating Applications is that, in an excess of 'political correctness', a …. determination had been made that those accused or suspected of discriminating against women or against those from ethnic minorities would be subjected to an investigative and disciplinary regime more rigorous and less fair than would be, and is, made available to those women or to those from ethnic minorities. As Miss Downing observed, in considering an application to strike out, the focus should be on the existence, or otherwise, of an arguable complaint and not on the sufficiency of the pleadings; the latter can be corrected by better particulars, the former can not. 13 Miss Chudleigh suggested that not every policy was to be laid at the door of the Commissioner himself and that, necessarily, many policies would be decided upon by officers of lower rank in the exercise of responsibilities vested in them. That may be so but it will be a matter of evidence and not a matter for submissions. If there be a policy to the effect complained of, and under which each applicant is said to have suffered a detriment, the probability must be that it will originate at a very high level in the Metropolitan Police, if not the highest. If the evidence were to show that such a policy does originate with the Commissioner at a level within his direct chain of command, there may be a case to answer."

"An undue sensitivity to, and concentration upon, the sex, race, sexual orientation or disability of a person which dictates, influences or affects the way in which another person deals with, responds or otherwise behaves towards that person, such action being done out of an excess of caution that offence may be caused to the person on grounds of their sex, race, sexual orientation or disability, such sensitivity tending to obscure the facts of any given situation and usually leading to a decision which does not reflect the true merits of that situation."

"4. It has of course always been a fundamental principle of the common law concept of natural justice that trials must be fair, and the fairness of a trial must include and be reflected in the absence of any excessive or avoidable delay by the Tribunal. This however is now enshrined in the right to a fair trial in a reasonable time expressly provided for in Article 6 of the European Convention for the Protection of Human Rights, now incorporated into domestic law by the Human Rights Act 1998, which provides: "

"13. The state has a duty under Article 6 in respect of both a fair trial and there being (and concluding by a judgment) a hearing within a reasonable time. But where an unsuccessful party brings an appeal based upon delay in the delivery of the judgment, the question is whether the party who lost has been deprived of a fair trial by virtue of that delay in judgment – i.e. such party must show that the result was unsafe as a consequence of the delay (and similarly the successful party will not be deprived of its success, notwithstanding a delay, unless the decision in its favour was unsafe as a result of the delay)." …. "15.1 The Appellant will need to invite the appellate court to examine the delayed judgment for any sign of error due to faulty recollection. The party impugning a judgment will need to show a material error or omission (if only one, then it would need to be the more significant) or a series of material errors or omissions. Material in this context does not mean material in the sense of an independent ground of appeal i.e. necessarily central to the decision and indicating an error of law or such error or errors of fact as to amount to perversity, but material in the sense that, taken separately or together, it or they show a real risk that there has been a failure of recollection, so as to establish that the decision is unsafe by virtue of the delay. 15.2 Such causation is essential. The appeal must not be allowed, just because of the judgment being a delayed one, to degenerate into an impermissible appeal based upon an alleged error or errors of fact, as a result of what Lord Scott called " trawling " through the judgment. It plainly should not open the door, of itself, to allowing a second bite at the cherry, or certainly to a remission to the employment tribunal for the purpose of allowing a better job to be done by the losing party, second time around. We are satisfied, notwithstanding Lord Scott's use of the words " probably or even possibly ", that, given the consequence for the parties of setting aside the judgment, the appeal tribunal must be satisfied on the balance of probabilities that the unsafeness is due to the delay. If the unsafeness of the Decision due to the delay is established, then that is an independent ground of appeal, and the delay will have infected and rendered unsafe one or more of the bases in law for the tribunal's decision. The error or errors must be due to the delay, and cast doubt upon the decision or part of the decision."

"However it may, in a particular case, be clear that there was a chambers discussion soon afterwards, and that the decision was then finally arrived at and recorded in all but final form, subject to tidying up or to typing, and that delay thereafter was due to incompetence or oversight. In such a case, although a great deal of anxiety and irritation will have been caused to the parties, the decision, and the recollection upon which the decision was based, will have been crystallised, and the delay thereafter will be of no materiality. Such a possibility only emphasises the need, to which we have referred above, in the unhappy and, we hope in the future, unlikely event of these kind of delays continuing to occur, notwithstanding a system of follow-up of outstanding judgments by the Tribunal administration, to which we shall refer, for the parties, or their legal representatives, to chase the Employment Tribunal in respect of delayed judgments ….."

"The above fixed penalty was issued to an unmarked police vehicle registered number P454HWM when it was parked in a council run pay and display parking bay in Stanley Street on 16 th September 1999. It is an offence to fail to pay the charge or supply details of the driver within fourteen days. The fixed penalty was not paid and Liverpool City Council has issued a notice under Section 108 of the Road Traffic Regulation Act, requiring Merseyside Police to provide details of the driver at the time of the offence. As a result of enquiries I have identified Constable 7075 HUSAIN as the driver of the vehicle. Constable HUSAIN has indicated that he is not going to pay the parking fine as he was engaged pressing enquiries. He has now submitted a report regarding the matter. [Attached] and signed the statutory notice. On my instruction Constable 1267 WILKINSON, who was a passenger in the vehicle, has completed a duty statement regarding the incident. This statement is also attached. The statement differs from Constable Husain's version of events. I take the view that Constable HUSAIN should have purchased a parking ticket for the vehicle and in any case paid the excess charge immediately, when the charge would have only been £20. I see no reason why Merseyside Police should stand the increased cost of the ticket and suggest that the statutory notice be forwarded to the City Council for them to pursue. I submit this report for your attention."

"Sergeant Townson, as a supervisor, was dealing with discipline and chose to forward the report to the area commander, rather than give the applicant a full opportunity to explain himself and the Tribunal is satisfied that this was because the applicant had complained about alleged race discrimination by Sergeant Townson. The decision to discipline must be within management parameters. Similarly the Tribunal is satisfied that in dealing with personnel matters such as the disciplining of civilian workers, Mr Robinson was acting as agent for the respondent under section 32(2) of the 1976 Act. The Chief Constable had delegated his authority to Mr Robinson to maintain discipline among civilian workers and in those circumstances again it was part of the management role of the Chief Constable and the Tribunal finds that he can be held liable for those matters. The Tribunal therefore has jurisdiction to hear those claims."

"that the disciplining of the Applicant for failure to pay a fixed penalty notice was victimisation"

"This was being raised now as a result of a complaint I had made"

"The Tribunal accepted Police Constable Solaru's evidence that Inspector Bullen had stated to P C Solaru that Mr Robinson did this because Mr Husain had made a complaint of racial discrimination against the Force."

"The Respondent is the Chief Constable of Merseyside Police ….The Respondent's Director of Personnel and Development, Mr Robinson properly and appropriately emphasised the limits of the Applicant's role …."

"11 Whether the Applicant's case was sufficiently particularised to permit an agency argument to be run in accordance with the case of Chief Constable of Cumbria v McGlennon [2002] ICR 1156 , or whether the Employment Tribunal erred in finding that wholly new factual allegations would have to be pleaded by way of amendment to sustain an agency argument, applying Selkent Bus Co Ltd v Moore [1996] IRLR 661 ; 12 Whether the Employment Tribunal acted improperly in striking out the Applicant's claim in breach of natural justice by relying upon arguments where the advocate was not given an opportunity to address the Tribunal; 13 Whether the Employment Tribunal erred in law by failing to permit the Applicant to provide further particulars by way of amendment to the Originating Application. 14 Whether the Employment Tribunal failed to give adequate reasons for the determination it made; 15 Whether the Employment Tribunal failed to have regard to section 4 of the Race Relations (Amendment Act) 2000 in considering the acts complained of by the Applicant"