The Supreme Court has held in P v Commissioner of Police of the Metropolis that police officers must have the right to bring claims of treatment contrary to EU law to a tribunal in order to comply with the principles of effectiveness and equivalence. Likewise, national rules in relation to judicial immunity have to be consistent with EU law.
After being assaulted in 2010 whilst serving as a police officer, P suffered post-traumatic stress disorder (PTSD). In 2011, she was involved in an incident which led to her arrest, but which she said was related to her PTSD. After an investigation, however, she was asked to appear before the Police Misconduct Panel at which she accepted that she had been guilty of misconduct. She relied on her good record as a police officer and her PTSD in mitigation, but was dismissed without notice in November 2012.
She claimed that the decision to dismiss her constituted discrimination arising from disability and disability-related harassment as a result of the failure to make reasonable adjustments for her PTSD.
Decision of lower courts
Following a pre-hearing review, the employment tribunal struck out P’s claim on the basis that as the misconduct panel was a judicial body, her claim was barred by judicial immunity.
Applying the decision of the Court of Appeal in Heath v Commissioner of Police of the Metropolis in which it held that the common law rule of judicial immunity could not be displaced by the provisions of the Equal Treatment Directive, the Employment Appeal Tribunal dismissed her appeal, as did the Court of Appeal.
Decision of Supreme Court
Overturning the decisions of the lower courts, the Supreme Court held that EU law, which takes precedence over domestic law, confers a directly effective right to be treated in accordance with the principle of equal treatment in relation to employment and working conditions, including dismissals. As such, UK law has to ensure that it complies with the general principles of effectiveness and equivalence. Likewise, national rules in relation to judicial immunity have to be consistent with EU law.
As discrimination claims can be brought before employment tribunals in domestic law, it follows under the principle of equivalence that police officers must have the right to bring claims of treatment contrary to the directive to a tribunal, and not just the Police Appeals Tribunal. Allowing police officers to bring tribunal claims also fulfils the principle of effectiveness, as tribunals have the power to award a range of remedies, including compensation, compared to the more limited remedies available before the Police Appeal Tribunal.
It was clear from section 42(1) of the Equality Act that police constables have the right to bring tribunal proceedings in relation to discrimination by chief officers and responsible officers. Read literally, however, the Act did not cover the exercise of disciplinary functions before a misconduct panel as it was not an act done by either the chief officer or the responsible authority within the meaning of section 42(1).
As this meant that the Act did not fully implement the directive, section 42(1) must be interpreted to include the functions of misconduct panels in relation to police constables. This did not mean the court was amending the legislation but was simply interpreting it to conform with EU law.