Immunity from suit
Labour & European Law Review Weekly Issue 460 09 March 2016
Although police officers are not employees (they are office-holders) they have the right to bring discrimination claims. However, in P v The Commissioner of Police for the Metropolis, the Court of Appeal held that a police officer could not bring a discrimination claim against a Police Misconduct Board because it enjoyed immunity from suit.
P, a serving police officer, suffered post-traumatic stress disorder (PTSD) after being assaulted. In September 2011, “whilst in drink”, she was involved in an incident which led to her arrest. After an investigation, she was brought on a disciplinary charge before the Police Misconduct Board. She accepted that she was guilty of the misconduct alleged, but claimed that it was due to her PTSD for which she had received inadequate help and support. However, in November 2012, she was dismissed.
P claimed that the board had treated her unfavourably because of her behaviour arising in consequence of her disability contrary to section 15 of the Equality Act; and had failed to make reasonable adjustments contrary to sections 20 and 21 of the Act.
Tribunal and EAT decisions
The tribunal held that P could not bring a claim against the Board because, as a quasi-judicial body, it had immunity from being sued (known as immunity from suit). The Employment Appeal Tribunal agreed.
P appealed on the basis that the tribunal and the EAT were bound by the decision in Lake v British Transport Police as opposed to the decision of the Court of Appeal in Heath v Commissioner of Metropolitan Police which no longer applied.
Decision by Court of Appeal
The Court of Appeal looked at both cases before deciding to dismiss the appeal.
In Heath, the claimant was a civilian employee of the Metropolitan Police who complained to a disciplinary panel that she had been sexually assaulted by a police inspector at work. She then brought a tribunal complaint against the male members of the panel on the basis that they should have objected when the male barrister representing the inspector asked her, in cross-examination, to demonstrate how he sexually assaulted her by opening her jacket and squeezing her right breast with her left hand. The Court of Appeal held that her claim could not succeed as the panel had immunity from suit.
In the case of Lake, on the other hand, the claimant argued that he had been unfairly dismissed because he had made a "protected disclosure" under section 103A of the Employment Rights Act 1996. In other words, he was a whistleblower. The Court of Appeal allowed the appeal to the extent that the employment tribunal had jurisdiction to hear and consider evidence and to make its own decision as to whether a section 103A claim had been established in respect of the decision by the Chief Constable who decides appeals from the panel.
In this case, the Court held that Heath and Lake were consistent in terms of claims based on challenging a decision of a police misconduct panel. It was bound by the decision in Heath, which could not be distinguished from the present case. It therefore rejected P’s appeal.
The judge commented that it is difficult to reconcile the fact that Parliament has given the right to police officers to make discrimination claims with the fact that a police misconduct panel is a statutory body that, in respect of its decision making only, has immunity from claims of any sort other than judicial review. The judge took the view that Parliament must have known what it was doing. Part of P’s complaints were that she was given inadequate support and help with her PTSD before the misconduct took place. Had she brought a claim about this failure to make reasonable adjustments the claim would not have been outside the jurisdiction of the tribunal. A claim that reasonable adjustments had not been made by the panel in the way in which it organised the hearing would also have been within the tribunal’s jurisdiction.