Lake v British Transport Police

Judicial or quasi-judicial immunity protects disciplinary-board members from suit or compulsory process for conduct in proceedings. It does not make the board’s decision binding or immune from evidential challenge in a statutory whistleblowing claim. Where a constable has the protections conferred by the Employment Rights Act 1996, the Employment Tribunal may determine whether a protected disclosure caused detriment or dismissal. It may receive evidence and reach its own conclusion, notwithstanding disciplinary and statutory appeal decisions. Judicial-immunity principles do not defeat that statutory jurisdiction.

The appellant, a British Transport Police constable, made a disclosure concerning the handling of human remains. He was subsequently charged with disciplinary offences and dismissed by a Police Disciplinary Board. The Chief Constable upheld the dismissal on review, and a later Police Appeal Tribunal appeal failed on the surviving charges and sanction.

The Employment Tribunal restricted the whistleblowing dismissal claim, holding that the Board’s proceedings and decision could not form its basis. The Employment Appeal Tribunal dismissed the appeal in judgment UKEAT015406LA. The central issue was whether judicial immunity prevented the Employment Tribunal from considering evidence and deciding for itself whether the disclosure was the reason for detriment or dismissal.

1. Appeal allowed. Lord Justice Pill held that the restrictive words in the Employment Tribunal’s order had to be removed. The claim was remitted to the Employment Tribunal for directions and a hearing on the merits.
2. Section 37(1) of the Police Reform Act 2002, by inserting section 43KA into the Employment Rights Act 1996, extended the protections in sections 47B, 48 and 103A to constables who were not employed under contracts of employment. That statutory right was not defeated by judicial-immunity principles.
3. The customary immunity recognised in Heath v Commissioner of Police for the Metropolis [2005] ICR 329 and Darker v Chief Constable of the West Midlands [2001] 1 AC 435 protected judges, advocates, witnesses and disciplinary-board members from suit or compulsory process concerning conduct in judicial proceedings. The present claim did not seek to sue the Board or its members, compel them to justify their decision, or challenge the manner in which proceedings were conducted.
4. The Employment Tribunal therefore had jurisdiction to consider evidence contrary to the Board’s findings and to reach its own decision under section 103A. It was not bound by the decision of the Board or the Police Appeal Tribunal. The appellant nevertheless had to establish that the protected disclosure was at least the principal reason for the detriment and dismissal. The court expressed no view on the merits.
5. Additional guidance. Wall LJ, with whom Pill LJ and Maurice Kay LJ agreed, warned that tribunals and practitioners should avoid allowing abstract legal issues to displace the factual evidence needed to resolve the claim. He applied by analogy the guidance in Barrack v Coles and another [2006] EWCA Civ 1041 and R (Burke) v GMC (Official Solicitor and others intervening) [2005] EWCA Civ 1003.

1. Court of Appeal (Civil Division): Allowed the appeal, removed the restriction preventing the Board’s decision from forming the basis of the section 103A claim, and remitted the case to the Employment Tribunal.
2. Employment Appeal Tribunal: Dismissed the appeal from the Employment Tribunal’s jurisdictional ruling in judgment UKEAT015406LA, delivered on 8 September 2006.
3. Employment Tribunal: At a pre-hearing review, refused to strike out the claim but restricted the dismissal claim so that the Police Disciplinary Board’s proceedings and decision could not form its basis.