McKinnon v The London Borough of Redbridge

A constabulary for the purposes of section 200(2)(a) of the Employment Rights Act 1996 is an organised body of constables. The organisation required depends on the body’s size and functions. A small parks police service with a chain of command, uniformed officers and a defined enforcement role may therefore qualify.

A constabulary is maintained by virtue of an enactment where its statutory authority derives from an enactment. It is sufficient that a local authority has exercised a permissive statutory power to appoint and attest its employees as constables. The statute need not prescribe the constabulary’s detailed organisation. Where those conditions are met, section 200 excludes the employees’ statutory right to claim unfair dismissal.

The London Borough of Redbridge employed the appellant as a sergeant in its Parks Police Service. The Council had appointed its officers as constables under statutory powers concerning parks and open spaces. Following his dismissal for gross misconduct, the appellant presented an unfair-dismissal complaint.

The Employment Tribunal held that section 200 of the Employment Rights Act 1996 did not prevent the claim from proceeding. The Employment Appeal Tribunal allowed the Council’s appeal on 7 June 2013, holding that the provision applied: UKEAT049612. The appellant appealed to the Court of Appeal.

The central issue was whether the Parks Police Service was a constabulary maintained by virtue of an enactment within section 200(2)(a).

1. Appeal dismissed unanimously. The Parks Police Service was a constabulary maintained by virtue of an enactment. The appellant was therefore in police service for section 200(2)(a) of the Employment Rights Act 1996, and section 200(1) excluded his unfair-dismissal claim.
2. A constabulary is an organised body of constables. It does not have to resemble a conventional police force. The necessary organisation depends on the number of constables and the functions performed. This small service had two teams, sergeants, a chief officer, a chain of command and uniformed officers performing a defined parks-enforcement role. It was consequently a constabulary.
3. The words “maintained by virtue of an enactment” concern the statutory source of authority for maintaining the body, not whether an enactment prescribes its internal structure. Section 77 of the Public Health Acts Amendment Act 1907 and article 18 of the Greater London Provisional Order for Securing Uniformity in the Law applicable with respect to Parks and Open Spaces permissively authorised the Council to procure relevant officers to be sworn as constables. Once the Council exercised those powers and the officers were attested, the Service was maintained by virtue of those enactments.
4. Section 200(2)(b) was unnecessary because section 200(2)(a) resolved the appeal. Jackson LJ nevertheless considered that the officers had the powers and privileges of constables, including statutory arrest powers and the common-law power concerning an actual or anticipated breach of the peace.
5. The resulting exclusion from an unfair-dismissal remedy appeared anomalous and unfair for Council employees. The court could not rewrite clear statutory language through interpretation. Any exemption for parks police officers was a matter for Parliament. The Employment Appeal Tribunal had therefore correctly reversed the Employment Tribunal.

• Court of Appeal (Civil Division) — dismissed the appellant’s appeal and upheld the exclusion of his unfair-dismissal claim: [2014] EWCA Civ 178.
• Employment Appeal Tribunal — allowed the Council’s appeal on 7 June 2013 and held that section 200 of the Employment Rights Act 1996 prevented the claim: UKEAT049612.
• Employment Tribunal — on 13 March 2012 held that section 200 did not apply and allowed the unfair-dismissal claims to proceed.