Chief Constable of Bedfordshire Police v Liversidge

A purposive construction gives effect to Parliament’s purpose only where the statutory language permits competing meanings. It cannot remove express limits from legislation. Under the Race Relations Act 1976, section 16 treats a constable’s office as employment by the chief officer or police authority only for acts done by that office-holder in relation to a constable or the office. It does not make the chief officer the employer for discriminatory acts by one constable against another. Section 32 requires an employment relationship and is not extended to constables by sections 16 or 75. A constable holds a common-law public office, is not a statutory office-holder and is not the chief constable’s agent. The claim therefore could not proceed on that basis.

The appellant, a police constable, alleged racial discrimination by fellow officers and sought to hold the Chief Constable responsible. The Employment Tribunal refused to strike out the relevant part of her first originating application, although it treated the withdrawn claim against one officer and the corresponding vicarious-liability claim as res judicata.

The Employment Appeal Tribunal allowed the Chief Constable’s appeal, holding that the claim could not succeed under the Race Relations Act 1976, and ordered the whole first originating application to be struck out. Its decision was reported at [2002] IRLR 15. The issue before the Court of Appeal was whether, before the 2000 amendments, the statutory scheme made a chief constable liable for discriminatory acts by one constable against another.

Lord Justice Peter Gibson delivered the leading judgment. Lord Justice Parker and Lord Justice Longmore agreed. The decision was unanimous.

1. Disposition. The appeal was dismissed with costs, subject to detailed assessment if not agreed. Permission to appeal to the House of Lords was refused.
2. Purposive construction. The Race Relations Act 1976 must be construed purposively, but the general purpose of combating discrimination cannot eliminate qualifications deliberately enacted by Parliament. Parliamentary material could be considered under Pepper v Hart [1993] AC 593 only if the statutory language were ambiguous and a clear ministerial or promoting statement assisted in resolving that ambiguity. Section 16 was clear.
3. Section 16. Its opening words confined the deeming provision to Part II. The words referring to an act done by the chief officer or police authority meant an act actually done by that person in relation to a constable or the office. They could not be rewritten to include an act deemed to have been done under section 32. The contrast with the wider wording of section 27(4) of the Race Relations Act 1968 was deliberate.
4. Sections 32 and 78. Section 32 imposed constructive, not true tortious, vicarious liability, but required an employer–employee relationship. A constable was not an employee within section 78, and section 16 did not extend to Part IV. The Court held that AM v WC [1999] ICR 1218, so far as it imposed liability on a chief constable for one constable’s acts against another, was wrong.
5. Section 75. Section 75 was expressly subject to section 16. A constable held an office at common law, not a statutory office, exercised original authority and was not the chief constable’s agent. Service by a constable was not naturally service on behalf of the Crown for the purposes of the chief officer. Section 75 therefore did not provide an alternative route to liability.
6. The Chief Constable was not liable under the pre-amendment Act for the alleged discriminatory acts of one constable against another. The later insertion of section 76A(3) supplied express deeming provisions for police officers, which would have been unnecessary if the appellant’s construction had already been correct.

• Court of Appeal (Civil Division): [2002] EWCA Civ 894. The appeal from the Employment Appeal Tribunal was dismissed with costs.
• Employment Appeal Tribunal: [2002] IRLR 15. The Chief Constable’s appeal from the Employment Tribunal was allowed, and the first originating application was struck out.
• Employment Tribunal: The Tribunal held that the withdrawn claim against PC Fitzgibbon and the corresponding claim of liability against the Chief Constable were res judicata, but allowed the remaining allegations and victimisation allegations to proceed.