Lake v British Transport Police

The Court of Appeal allowed an appeal against interlocutory rulings of the Employment Tribunal and Employment Appeal Tribunal which had held that the Police Disciplinary Board's proceedings and decision were immune from suit and could not form the basis of a claim under sections of the Employment Rights Act 1996. The court held that, although judicial and quasi-judicial actors and witnesses enjoy immunity for things said and done in the course of proceedings, that immunity does not oust the employment tribunal's jurisdiction to hear and decide whether, on the evidence, a constable benefited from the statutory protection against detrimental treatment and unfair dismissal for making a protected disclosure (Sections 47B and 103A as extended by Section 43KA).

The court emphasised that immunity would protect attempts to compel a member of the disciplinary panel to justify or explain their decision or to impugn remarks made in the course of the proceedings, but it does not prevent the employment tribunal from considering contrary evidence and reaching its own decision on whether the statutory test under Section 103A is satisfied.

Background and facts. The appellant, a constable in the British Transport Police, alleged that colleagues had retained human remains and that, after he received a disclosure, disciplinary proceedings were taken against him, culminating in dismissal by the Police Disciplinary Board. He complained to an employment tribunal that he had been subjected to a detriment (Section 47B) and unfairly dismissed because he had made a protected disclosure (Section 103A). The Board's decision was subject to internal review by the Chief Constable and to the Police Appeals Tribunal; the appellant brought his claim to the employment tribunal in July 2005.

Procedural history. At a pre-hearing review the employment tribunal directed that the Board's proceedings and its decision could not form the basis of the Section 103A claim on the ground of immunity. The Employment Appeal Tribunal upheld that ruling. The appellant appealed to the Court of Appeal.

Nature of the application. (i) The relief sought was a determination that the employment tribunal has jurisdiction to hear and decide whether the bringing of a protected disclosure was the reason or principal reason for detriment and dismissal, notwithstanding the disciplinary Board's proceedings; (ii) The legal issue was whether judicial/quasi‑judicial immunity attaching to the disciplinary Board prevents the employment tribunal from reconsidering findings and deciding a statutory claim under Sections 47B and 103A (as extended by Section 43KA); (iii) The tribunal also had to consider whether the disclosure relied on was a "protected disclosure" and whether the laying of charges itself amounted to a detriment.

Court's reasoning and disposition. The court accepted that immunity protects those involved in judicial or quasi‑judicial proceedings against being sued or compelled to justify their remarks or conduct, relying on the principles in Darker and Heath as to the scope of immunity. The court rejected the extension of that immunity so as to deprive the employment tribunal of jurisdiction to consider anew whether the statutory test for protection from detriment or unfair dismissal was established. The insertion of Section 43KA by Section 37(1) of the Police Reform Act 2002, treating constables as employees for these specific protections, confers a statutory right to pursue claims in the employment tribunal and notions of judicial immunity do not defeat that statutory right. The Court of Appeal allowed the appeal and remitted the matter to the employment tribunal for full consideration of the merits, while noting that the immunity would still protect any attempt to call the disciplinary chairman to justify his decision or to attack remarks made in the course of the disciplinary proceedings. The court expressed no view on the merits of the substantive whistleblowing claim.

Appeal allowed. The Court of Appeal held that the immunity attaching to members of a judicial or quasi‑judicial disciplinary body does not prevent an employment tribunal from receiving evidence, considering the facts and reaching its own decision on whether dismissal or other detrimental treatment was for the reason or principal reason that the employee made a protected disclosure under the Employment Rights Act 1996 (as extended by Section 43KA). The tribunal remains, however, bound to respect absolute immunity where a party seeks to call or compel panel members to justify their conduct or statements in the disciplinary proceedings.

Appeal from the Employment Appeal Tribunal (His Honour Judge Serota QC) which had dismissed the appellant's appeal against the Employment Tribunal's pre-hearing ruling of 16 January 2006. The EAT decision was delivered on 8 September 2006 (UKEAT015406LA). The Court of Appeal heard the appeal and allowed it on 4 May 2007.