Power v Greater Manchester Police Authority

Under article six of the European Convention on Human Rights (ECHR), “everyone is entitled to a fair and public hearing” and to cross-examine witnesses against them. In Power v Greater Manchester Police Authority, however, the Employment Appeal Tribunal (EAT) said this right only extended to people confronting accusers in criminal trials and not to claimants in discrimination cases.

Basic facts

Mr Power, a police trainer for Greater Manchester police, was dismissed by the police authority. He had been a spiritualist for many years. He was told in his dismissal letter by Ms Christine Joyce that had the force known about his “current work in the psychic field” before he joined the force, “we would not have offered you employment”.

He claimed he had been dismissed for his spiritualist beliefs and that this was contrary to the Employment Equality (Religion or Belief) Regulations 2003. Both the tribunal and EAT agreed with him that his views could be argued under the regulations and that he was entitled to bring his claim to a full hearing.

Tribunal hearing

However, the tribunal found against him at the hearing, saying that the police force had genuinely believed that, based on information provided to it, it would be “wholly inappropriate” to allow him to continue in his job.

It decided unanimously that he had been dismissed not because of his beliefs, but for the unacceptable way in which he had expressed those beliefs during his employment. He had not therefore been discriminated against.

Mr Power appealed the decision, arguing that as the police authority had not called the decision-maker, Christine Joyce, to give evidence (she had also been dismissed by this stage), he had not had a fair trial as he had not had the chance to cross-examine her. This, he said, was in breach of his rights under article six of the ECHR.

EAT decision

The EAT has now dismissed this argument at a preliminary hearing. It said that the right to examine witnesses under article 6.3(d) applied only to the “confrontation of accusers in a criminal process, not as a claimant in a discrimination case.” There had therefore been no breach of his right to a fair trial under article six.

It stressed that, if there was evidence of discrimination and the employer was called upon to provide an explanation, that explanation “will be the less credible if relevant witnesses are not produced by the Respondent and are not there to support its case and, of course, cannot be cross-examined. That is not, it seems to us, a breach of a convention right nor is there a right to confront any particular witness when he accuses a corporate respondent of discrimination”.

Comment

This is an issue which arises on a frequent basis. In the past the courts have consistently taken the same line as in this human rights case, but under a slightly different guise, namely the requirements of natural justice.

The only exception to that was, and remains, R v Hull Prison Board of Visitors, ex.p St Germain where the High Court did suggest that in a serious case it may be that there is a right to cross-examine witnesses. Although the issue of what is “serious” remains uncertain, it would probably include proceedings where the function was to establish the guilt or innocence of a person charged with serious misconduct.