P v The Commissioner of Police for the Metropolis

The Court of Appeal dismissed the appeal and held that a Police Misconduct Panel constituted under the Police (Conduct) Regulations 2008 is a judicial body whose members enjoy immunity from suit for acts done in the exercise of their judicial function. The court treated Heath v Commissioner of Metropolitan Police [2005] ICR 329 as binding authority that disciplinary panels are, in the relevant respects, judicial and immune. Lake v British Transport Police [2007] ICR 1293 was considered and distinguished: it is limited to the proposition that a reviewing officer or effective dismissing officer (such as a chief constable) is not bound by the panel’s findings and an employment tribunal may examine the underlying facts. Because the appellant’s disability discrimination claim impugned the panel’s process and decision and thus would, if successful, cast the panel as perpetrators of discrimination for exercising judicial functions, the Employment Tribunal was entitled to strike out the claim.

Background and parties:

• The appellant was a serving police officer who suffered post-traumatic stress disorder following an assault. After an incident in September 2011 she was investigated, disciplined before a Police Misconduct Board and dismissed for gross misconduct on 12 November 2012. The respondent is the Commissioner of Police for the Metropolis.

Nature of the claim and relief sought:

• The appellant brought disability discrimination claims in the Employment Tribunal, relying on the Equality Act 2010 (in particular section 15(1) on discrimination arising from disability, sections 20 and 21 on reasonable adjustments, and section 26 on harassment). She alleged that disciplinary proceedings and dismissal constituted discrimination and a failure to make reasonable adjustments.

Procedural posture:

• The Employment Tribunal struck out the discrimination claims on the basis that the Police Misconduct Board was a judicial body enjoying immunity from suit. The Employment Appeal Tribunal (Langstaff J) dismissed the appellant’s appeal on 25 March 2014. Permission to appeal to this court was granted by Rimer LJ on 25 July 2014.

Issues framed by the Court:

• Whether the Police Misconduct Panel was a judicial or quasi-judicial body entitled to absolute immunity for acts done in the exercise of its function; and if so whether that immunity barred the appellant’s discrimination claims in the Employment Tribunal.

Reasoning:

• The Court of Appeal reviewed the authorities, notably Heath v Commissioner of Metropolitan Police [2005] ICR 329 and Lake v British Transport Police [2007] ICR 1293. Heath was applied as binding: the disciplinary hearing was closely analogous to a judicial proceeding and members of the panel enjoyed immunity from suit for acts done judicially. Lake was read narrowly; it confirmed that an employment tribunal can consider the merits of a protected-disclosure unfair dismissal claim against the effective dismissing officer (for example a chief constable) and is not bound by the panel’s findings, but it did not displace Heath’s holding that the panel itself has judicial immunity.
• The court concluded that the appellant’s pleaded discrimination claims impugned the integrity and conduct of the Panel in the exercise of its judicial functions rather than amounting simply to a disagreement with the correctness of its decision; accordingly the tribunal below was right to strike out the claims.

Observations: The court noted the apparent tension between Parliament having conferred rights under the Equality Act 2010 to bring such claims and the continuing effect of judicial immunity, but emphasised that Parliament had not altered the immunity and that the court was bound by Heath.

Appeal dismissed. The Court of Appeal held that the Police Misconduct Board was a judicial body and its members enjoyed immunity from suit for acts done in the exercise of their judicial function. Heath v Commissioner of Metropolitan Police [2005] ICR 329 was binding and not displaced by Lake v British Transport Police [2007] ICR 1293, which is limited to the proposition that an effective dismissing officer or reviewer is not bound by a panel's findings. Because the appellant’s discrimination claims impugned the panel’s conduct and decision, the Employment Tribunal was entitled to strike them out.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (Langstaff J) which handed down judgment on 25 March 2014 dismissing the appeal against the Employment Tribunal (Employment Judge Etherington) decision of 8 July 2013 that struck out the discrimination claim. Permission to appeal to the Court of Appeal was granted by Rimer LJ on 25 July 2014.