Bedfordshire Police v Cheryldeen Shantha Liversidge

A renewed application for permission to appeal may be granted where viable arguments capable of succeeding remain available and were not fully addressed below, particularly where the proposed appeal raises an important question of public law. The court need not determine the merits at that stage. Possible issues included liability under the Race Relations Act 1976, section 75(1)(b), and the Police Act 1996, section 88, for discrimination by officers lower in a police-force hierarchy. The court left unresolved whether the office of constable is statutory and whether section 88 creates a statutory tort attracting vicarious liability. Permission was granted and the substantive appeal was directed to be heard.

Cheryldeen Shantha Liversidge renewed an application for permission to appeal from the Employment Appeal Tribunal. The proposed appeal concerned whether a chief constable could be liable for racial or sexual discrimination committed against a serving police officer by officers lower in the force hierarchy, rather than by the chief constable or the Police Authority. The proposed grounds included statutory liability under section 75(1)(b) of the Race Relations Act 1976 and section 88 of the Police Act 1996. The central question was whether the appeal raised sufficiently viable and important issues to proceed.

1. Disposition. Lord Justice Sedley concluded that the proposed appeal raised viable arguments capable of succeeding which had not been fully addressed by the Employment Appeal Tribunal. Lord Justice Waller agreed. The application for permission to appeal was allowed, and the appeal was directed to be heard as soon as possible.
2. Race discrimination. Section 75(1)(b) of the Race Relations Act 1976 might provide a statutory basis for liability by a chief constable for discriminatory acts committed by subordinate officers. The court identified an unresolved constitutional issue as to whether the office of constable had become subsumed in statute. The court also noted the continuing significance of the issue because the amendment made by the Race Relations Act 2000 in relation to the 1976 Act had not been extended to the Sex Discrimination Act 1975.
3. Police Act liability. A further arguable issue was whether section 88 of the Police Act 1996, independently of the equality legislation, created liability of the chief constable for discriminatory conduct as a statutory tort, and whether that liability fell within the principle of vicarious liability applicable to common-law torts.
4. The court expressly passed no judgment on the merits. It considered it sufficient that the case was appropriate for permission. The substantive appeal was given a time estimate of one and a half to two days.

• Court of Appeal (Civil Division): On a renewed application, permission to appeal was granted and the substantive appeal was directed to be heard. The decision is reported at [2001] EWCA Civ 1985.
• Employment Appeal Tribunal: The proposed appeal arose from a decision of the Employment Appeal Tribunal; its citation was not stated in the judgment.