LONDON BOROUGH OF REDBRIDGE v (1) MR H DHINSA (2) MR G A MCKINNON [2013] UKEAT 0496_12_0706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2013] UKEAT 0496_12_0706Case No Appeal No. UKEAT/0496/12
Between
LONDON BOROUGH OF REDBRIDGEAPPELLANT(1) MR H DHINSA (2) MR G A MCKINNONRESPONDENT
Before
His Honour Judge Peter ClarkDate 7 June 2013
[1]APPEARANCES For the Appellant MR M PURCHASE (of Counsel) Instructed by: London Borough of Redbridge Legal Services Town Hall 128-142 High Road Ilford IG1 1DD For the First Respondent For the Second Respondent MR R KOHANZAD (of Counsel) Instructed by: IBB Solicitors Capital Court 30 Windsor Street Uxbridge UB8 1AB MR G A McKINNON (The Second Respondent in Person) SUMMARY UNFAIR DISMISSAL JURISDICTIONAL POINTS – Excluded employments Whether the Claimants, employed by the Respondent in its Parks Police Service, were excluded from bringing claims of 'ordinary' unfair dismissal by virtue of s.200 ERA 1996 . Held : they were. Appeal allowed. HIS HONOUR JUDGE PETER CLARK Introduction The issue in this appeal is whether the Claimants, Mr Dhinsa and Mr McKinnon, were excluded from bringing complaints of 'ordinary' unfair dismissal against their former employer, the London Borough of Redbridge, Respondent, by virtue of the provisions of s.200 Employment Rights Act 1996 . The right to complain of ordinary unfair dismissal (as opposed to dismissal for an inadmissible reason under ss.100 or 103A) does not apply to employment under a contract of employment in police service or to persons engaged in such employment. 'Police service' means -(a) Service as a member of a constabulary maintained by virtue of an enactment, or(b) ….service in any other capacity by virtue of which a person has the powers or privileges of a constable.[2]Employment Judge Tobin, sitting alone at a Pre-Hearing Review at the East London Hearing Centre on 13 March 2012 held, by a reserved decision promulgated with reasons on 5 July 2012, that the Claimants were not caught by s.200. Against that Judgment the Respondent now appeals.[3]Although s.200 is headed 'Police officers' the question is whether the Claimants were employed by the Respondent in police service as defined by s.200(2).[4]The facts are not contentious. Both Claimants commenced employment with the Respondent in the Redbridge Parks Police Service on 8 May 2006; Mr Dhinsa as a constable and Mr McKinnon as a Sergeant and team leader. Mr Dhinsa's job description as a constable included, among other duties, to patrol the parks and open spaces in uniform both on foot and on mobile patrol and to enforce the byelaws, regulations and criminal law as required. Mr McKinnon's purpose as a sergeant was to lead and supervise a team of parks constables.[5]Section 1 of the Ministry of Housing and Local Government Provisional Order Confirmation (Greater London Parks and Open Spaces) Act 1967 (the 1967 Act) confirmed the Order in the Schedule to the Act (the 1967 Order).[6]Article 18 of the 1967 Order provides:
"A local authority may procure officers appointed by them for securing the observance of the provisions of all enactments relating to open spaces under their control of management and of the byelaws and regulations made thereunder to be sworn in as constables for that purpose but any such officer shall not act as a constable unless in uniform or provided with a warrant."
[7]Both Claimants made a 'voluntary declaration' before a Justice of the Peace in accordance with s.18 of the Statutory Declarations Act 1835 and section 12 of the Promissory Oaths Act 1868 in pursuance of Article 18 of the 1967 Order in the following terms:
"I …. do solemnly and sincerely declare that: I will well and truly serve the Queen in the office of Constable in the said London Borough [Redbridge] in pursuance of… Article 18 of the [1967 Order] … with fairness ….; and that I will to the best of my power secure the observance of the provisions of all enactments relating to parks and open spaces under the control or management of [Redbridge]… and of the byelaws and regulations made thereunder; and that while I continue to hold the said office of Constable I will … discharge all the duties thereof faithfully according to law."
[8]Mr Dhinsa complained of racial and/or religious discrimination at the hands of Mr McKinnon. That formed the subject matter of his first form ET1 to the Employment Tribunal. No jurisdictional question arose in that set of proceedings since s.42 Equality Act 2010 (replicating earlier discrimination legislative provisions) deems the office of constable as employment. He later resigned and brought a second complaint of constructive unfair dismissal. It is that second complaint which is the subject of this appeal, together with Mr McKinnon's complaint of unfair dismissal following his dismissal by the Respondent arising out of Mr Dhinsa's complaints against him.[9]Returning to the definition of police service (it being common ground that the Claimants were employed by the Respondent), I begin with the first definition in s.200(2)(a) ERA:
"Service as a member of a constabulary maintained by virtue of an enactment."
[10]That definition raises three questions:(1) Were the Claimants constables?(2) Were they members of a constabulary?(3) Maintained by virtue of an enactment?[11]I accept Mr Purchase's submission that there are different types of constable. Some, like Metropolitan Police officers (as was Mr McKinnon before joining the Respondent) are office holders; they are by definition not employees for the purposes of the ERA: see Metropolitan Police Commissioner v Lowrey-Nesbitt [1999] ICR 401 . Metropolitan police officers and special constables are appointed under the Police Act 1996 : by s.29 those constables must be 'attested' as a constable by making a declaration before a Justice of the Peace. They have wide powers of arrest under s.110 SOCPA 2005 . They are responsible for the preservation of the peace generally.[12]Other police organizations have more limited powers, confined to the relevant area of operations. By way of example, the British Transport Police (BTP). In Spence v British Railways Board [2001] ICR 232 the EAT (Charles J presiding) upheld the decision of an ET that a sergeant in the BTP was caught by the s.200(2)(a) exclusion; s.53(1) of the British Transport Commission Act 1949 gave statutory power to the Secretary of State to make a scheme for the organisation, control and administration of the transport police who were employed by the Railways Board and appointed as constables pursuant to the statutory power conferred by s.53 of the 1949 Act. Section 53 provided for the appointment by justices of persons to act as constables on railway premises; such appointees were required to make oath or declaration in due form of law before any Justice. I note that in Lowrey-Nesbitt Morison P observed (403H-404A):
"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 BTP, MOD Police, Royal Parks Constabulary and UKEA Police."
[13]I have been shown the Parks Regulation Act 1872 which provides by s.3 that Park Constable shall mean any person …appointed park constable of a park as defined by this Act and by s.3A:
"Every park constable shall on appointment be attested as a constable by making a declaration before a Justice of the Peace that he will duly execute the office of a constable."
[14]Against that background in the jurisprudence I return to the application of the three questions raised by s.200(2)(a) to the facts of the present case.[15]First, I am satisfied that by virtue of the declarations made by the Claimants before a Justice of the Peace and the obligations which they undertook to enforce the byelaws and regulations applying to the Redbridge Parks that they were constables. The fact that they do not possess the width of powers afforded to constables in, for example, the Metropolitan Police is nothing to the point: see the more limited powers of BTP or Royal Parks Constabulary officers.[16]Secondly, I am satisfied that the Redbridge Parks Police Service is a body of constables and that the Claimants served as members of that constabulary and finally that that constabulary was maintained by virtue of the 1967 Act to which the 1967 Order, particularly Articles 18 and 19 (as amended) was scheduled. As employees of the Respondent the Claimants were therefore excluded from bringing complaints of ordinary unfair dismissal by virtue of s.200 ERA.[17]In reaching that conclusion I have considered and rejected the distinction which Mr Kohanzad on behalf of Mr Dhinsa seeks to draw between the limited powers accorded to the Claimants and those conferred on constables to whom the Police Act 1996 applies. Equally, I do not accept the distinction which he seeks to draw between declarations and attestations. The expressions amount to the same thing, as s.3A of the Parks Regulation Act 1872 illustrates. What is required is that the constable is 'sworn in' before a JP. That is what happened in these two cases.[18]Mr McKinnon, representing himself, referred me to a local newspaper cutting which indicated that a Mr Elfed Phillips, a constable with the Hampstead Heath Constabulary, succeeded in his complaint of unfair dismissal in 2005 against the City of London Corporation responsible for the Heath. Whilst the two reports put before me are largely illegible I pay no regard to the decision of another ET in arriving at my conclusions in this appeal.[19]It is said on behalf of both Claimants that the Police Act 1990 prohibits union membership and s.280 TULRCA 1992 excludes persons in police service from the trade union rights afforded by ss.137-8, whereas the Claimants were members of a trade union. That may explain why the Police Federation exists for constables holding office to which the Police Act 1996 applies. It also raises an unfortunate lacuna in that there is no independent body to whom these Claimants can complain of unfair dismissal. However that, in my judgment, is the effect of a proper construction of s.200 ERA.[20]In arriving at a different conclusion I am satisfied that the EJ fell into error. First, because on a proper construction he was bound to conclude on the facts that the s.200 exclusion applied to these Claimants. Secondly, he misconstrued s.200(2)(a) ERA at para. 9 in saying that the Police Act 1996 is the relevant enactment referred to in s.200(2)(a); no such limitation is contained in the words 'by virtue of any enactment' (see Spence ). Thirdly, I do not accept that the limitation on the Claimants' duties compared with, for example, Metropolitan Police officers, is material (reasons, para. 8). Fourthly, it was common ground that the Claimants were employees of the Respondent; it is only if they are employees (rather than office holders) that s.200 is capable of being engaged (see paras. 5 and 7). Fifthly, the analogy drawn between the Claimants and water bailiffs, market constables and travel safe (sic) officers (para. 10) is unhelpful, particularly where, as Mr Purchase points out, water bailiffs are deemed to be constables under s.36(1) of the Salmon and Freshwater Fisheries Act 1975 . Finally, whilst offering no analysis of the authorities to which he was referred the EJ then concluded (para. 11) that the Claimants were not 'police officers' or 'constables' within the meaning of s.200 ERA. That is not the question posed by s.200(2)(a); rather it is whether they were members of a constabulary maintained by virtue of an enactment? Plainly they were, in my judgment, for the reasons given above. It is therefore unnecessary for me to go on to consider the definition is s.200(2)(b). This appeal is allowed; the ET decision is set aside and it is declared that both Claimants are excluded from the right to pursue their complaints of unfair dismissal by virtue of s.200 ERA.