Commissioner of Police of The Metropolis v Weeks

Police officers may act as agents of a chief officer for discrimination purposes when exercising employment functions with the chief officer’s express or implied authority. The special status of a constable does not prevent ordinary agency principles applying to decisions about appraisal, working hours, flexible working, supervisory responsibility or pay. The distinction is between a constable’s original authority as a peace officer and functions performed on behalf of the employer or deemed employer. Where the employer knows that an officer is making employment decisions and permits those decisions to operate, agency may be inferred. The Employment Appeal Tribunal upheld liability under sections 17 and 41(2) of the Sex Discrimination Act 1975.

The claimant was a civilian employee of the Commissioner of Police of the Metropolis, working in a joint police unit staffed by personnel from several organisations. She was line-managed by a detective sergeant of the City of London Police. The Employment Judge found that the sergeant made decisions concerning her appraisal, working hours, flexible-working request, supervisory responsibilities and pay with the Commissioner’s express or implied authority.

At a pre-hearing review, the Employment Judge held that the claimant could pursue discrimination claims against the Commissioner in respect of those acts. The Commissioner appealed, arguing that the statutory provisions concerning police officers did not make the Commissioner responsible for acts of an officer from another force and that no agency relationship had been established. The central issue was whether the City of London officer acted as the Commissioner’s agent in employment matters.

1. Appeal dismissed. The Employment Judge had directed herself correctly on whether the City of London detective sergeant had the express or implied authority of the Commissioner to act on his behalf.
2. Section 17(9) of the Sex Discrimination Act 1975 addresses the deployment of a constable under the direction and control of another force. It did not provide a complete code excluding agency in the different circumstances of this case.
3. The deeming provisions in section 17 and the agency provision in section 41(2) operate together. Section 17(1A) is directly relevant to the course-of-employment question under section 41(1), but does not remove or determine the separate agency question under section 41(2).
4. The principle in Farah v Commissioner of Police of the Metropolis [1998] QB 65 that agency is inimical to the status of a constable applies to acts performed in the exercise of a constable’s original authority as a peace officer. It does not exclude agency where the officer acts, with express or implied authority, on behalf of a chief officer in employment matters.
5. Following Chief Constable of Cumbria v McGlennon [2002] ICR 1156, agency may exist through the chain of command even where the agent is a police officer under another chief officer’s direction and control. The sergeant’s line-management functions were uniquely employment-related. The Commissioner knew of, permitted and acted upon his decisions, making the finding of express or implied consent tenable.
6. No further factual findings or more precise boundary between police functions and employment functions were required. The Employment Judge’s reasons also satisfied the test in English v Emery Reimbold [2003] IRLR 710.

• Employment Appeal Tribunal: The appeal from the Employment Judge’s pre-hearing review decision was dismissed. The Tribunal upheld the finding that the City of London Police officer acted with the Commissioner’s express or implied authority in relation to the claimant’s employment matters.