London Borough of Redbridge v Dhinsa and McKinnon

The Court of Appeal held that members of the Redbridge Parks Police Service were constables and that the Service constituted "a constabulary maintained by virtue of an enactment" for the purposes of section 200(2)(a) of the Employment Rights Act 1996. Because section 200(1) excludes employment-protection provisions for persons serving in police service or in capacities by virtue of which a person has the powers or privileges of a constable, the appellant’s claim for unfair dismissal was barred. The court reached this conclusion after examining the office of constable (including historical background and attestation), the statutory powers under section 77 Public Health Acts Amendment Act 1907 and Article 18 of the London Parks Order, and the organisational features of the Redbridge Parks Police Service.

Key legal principles applied were the meaning of "constable" and "constabulary", the significance of attestation before a justice of the peace, and the proper construction of section 200 ERA 1996. The court rejected arguments that the small scale or the permissive language of the enabling statutes prevented the Service from being a constabulary maintained by virtue of an enactment.

Background and parties: The appellant, Mr McKinnon, was employed by the London Borough of Redbridge as a sergeant in the Redbridge Parks Police Service. He was dismissed for gross misconduct on 6 July 2010 and brought a claim for unfair dismissal. The Council defended that section 200 of the Employment Rights Act 1996 excluded the claim.

Procedural history: The Employment Tribunal (decision dated 13 March 2012) held the claim could proceed. The Employment Appeal Tribunal (decision dated 7 June 2013, HHJ Peter Clark) reversed the ET, holding section 200 applied. With permission, Mr McKinnon appealed to the Court of Appeal.

(i) Nature of the application: A claim for compensation for unfair dismissal under the Employment Rights Act 1996.

(ii) Issues framed:

• Whether members of the Redbridge Parks Police Service were "constables" in the full sense;
• Whether the Redbridge Parks Police Service constituted "a constabulary maintained by virtue of an enactment" under section 200(2)(a) ERA 1996 (alternatively whether s200(2)(b) applied); and
• Whether, if section 200 applied, it precluded Mr McKinnon’s unfair dismissal claim.

(iii) Reasoning and disposition: The court analysed the office of constable (historical common-law powers and modern statutory framework), emphasising attestation before a justice of the peace as the hallmark of the office. It accepted that constables take different organisational forms and that the degree of organisation required to be a constabulary depends on context. The Redbridge Parks Police Service, organised into teams with sergeants and a chief officer and whose members made declarations before a justice of the peace pursuant to the permissive powers in section 77 Public Health Acts Amendment Act 1907 and Article 18 of the London Parks Order, was sufficiently organised to be a constabulary. Although the enabling provisions were permissive rather than mandatory, the council had exercised its statutory power to have officers sworn as constables. Accordingly the Service was "maintained by virtue of an enactment" for the purposes of section 200(2)(a). The result was that section 200(1) excluded the statutory unfair dismissal protections and the appeal was dismissed. The court noted the potential anomaly and regretted the practical harshness but declined to rewrite the statute, inviting Parliamentary consideration.

Appeal dismissed. The court held that the Redbridge Parks Police Service was a constabulary maintained by virtue of an enactment (s77 Public Health Acts Amendment Act 1907 and Article 18 of the London Parks Order) and that its members were constables who had been attested; therefore section 200(1) of the Employment Rights Act 1996 operated to exclude unfair dismissal remedies for the appellant.

Employment Tribunal allowed the claims (decision dated 13 March 2012). Employment Appeal Tribunal (HHJ Peter Clark) allowed the Council's appeal and held s200 ERA 1996 applied (decision dated 7 June 2013). Court of Appeal dismissed the appellant's appeal [2014] EWCA Civ 178 (26 February 2014).