Kent Constabulary v Baskerville

Section 41(2) of the Sex Discrimination Act 1975 is a general deeming provision applying to Part II, including the police provision in section 17(1). It does not create an agency relationship. It attributes to a principal acts done by an existing agent with the principal’s express or implied authority. A police officer may act as the Chief Constable’s agent in matters outside the officer’s independent role as a peace officer. Whether the necessary agency and authority exist is fact-sensitive. It may include managerial functions delegated within the direction and control of a large police force. A claim should not be struck out where the pleaded facts could establish those matters.

The respondent, a detective constable, brought sex discrimination and sexual harassment complaints concerning conduct by fellow officers and supervisors. The Chief Constable applied to strike out the proceedings under Rule 15(2)(c) of the Employment Tribunals rules, arguing that he could not be liable for acts committed by one police officer against another.

The Ashford Employment Tribunal refused the application. The Employment Appeal Tribunal dismissed the appeal, considering that the agency case was arguable and that the pleaded facts required investigation. The central issue before the Court of Appeal was whether sections 17(1) and 41(2) of the Sex Discrimination Act 1975 could make the Chief Constable liable for discriminatory acts committed by subordinate officers.

Appeal dismissed. Lord Justice Peter Gibson gave the leading judgment. Lord Justice Kay and the Vice-Chancellor agreed.

1. Section 41(2) of the Sex Discrimination Act 1975 is a general provision applying throughout the Act, including Part II. It does not create the relationship of principal and agent. It prescribes the consequences where an existing agent acts for a principal with express or implied authority.
2. Read with section 17(1), section 41(2) requires an authorised act of a police officer, done as the Chief Constable’s agent, to be treated as an act of the Chief Constable. If the act amounts to discrimination under section 6(2), the complaining constable may present a complaint under section 63(1).
3. The exclusion identified in Farah v Metropolitan Police Commissioner [1998] QB 65 concerns a constable acting as a peace officer, whose authority is original rather than delegated. It does not prevent agency arising in relation to other conduct.
4. Functions falling within the Chief Constable’s direction and control of a large and complex police force may be delegated to subordinate officers. The tribunal of fact must decide whether the complained-of acts were performed as the Chief Constable’s agent and with his authority. The decision in Chief Constable of Cumberland v McGlennon [2002] ICR 1156 was rightly decided to that extent, and Reg v Chief Constable of Greater Manchester, Ex p Lainton [2000] ICR 1332 supported the possibility of delegation.
5. The pleaded case could not be shown to fall wholly outside section 41(2). The Employment Tribunal therefore had to determine the facts, and strike-out was inappropriate. The matter was remitted to the Tribunal. The respondent was ordered to pay the appellant’s costs of the appeal, and permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division) — [2003] EWCA Civ 1354: dismissed the Chief Constable’s appeal, ordered costs, refused permission to appeal to the House of Lords, and remitted the matter to the Employment Tribunal.
2. Employment Appeal Tribunal — dismissed the appeal against the Employment Tribunal’s refusal to strike out the claim.
3. Employment Tribunal, Ashford — refused the Chief Constable’s application to strike out the respondent’s discrimination complaint.