P v Commissioner of Police of the Metropolis

Police officers have a directly effective EU right to equal treatment in employment, including dismissal, and must have access to effective and equivalent procedures for enforcing it. A domestic rule of judicial immunity cannot bar a discrimination claim arising from a police misconduct panel’s decision.

Section 42(1) of the Equality Act 2010 must therefore be interpreted as covering acts done by persons conducting misconduct proceedings, so far as those acts fall within the Framework Directive. The provision so construed permits proceedings against the chief officer in the Employment Tribunal and overrides any common-law immunity which might otherwise protect the panel.

The appellant police officer suffered from post-traumatic stress disorder. A misconduct panel constituted under the Police (Conduct) Regulations 2008 found gross misconduct and dismissed her without notice. She brought Employment Tribunal proceedings alleging disability discrimination, disability-related harassment and failure to make reasonable adjustments.

The Employment Tribunal struck out the claim because the panel was treated as a judicial body enjoying immunity. The Employment Appeal Tribunal and the Court of Appeal, in [2016] EWCA Civ 2, upheld that decision by applying Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943.

The issue was whether judicial immunity could bar the enforcement in the Employment Tribunal of a police officer’s directly effective EU right to equal treatment where the alleged discrimination arose from the conduct and decision of a misconduct panel.

1. Appeal allowed unanimously; case remitted to the Employment Tribunal. Lord Reed delivered the judgment with which Lady Hale, Lord Kerr, Lord Wilson and Lord Hughes agreed. The Framework Directive conferred on police officers a directly effective right to equal treatment in employment and working conditions, including dismissal. None of its stated qualifications applied.

2. Articles 9(1) and 17 of the Directive, the principles of effectiveness and equivalence, and article 47 of the Charter required an effective procedure and effective, proportionate and dissuasive sanctions. Police officers therefore had to be able to bring their discrimination claims in the specialist Employment Tribunal. A Police Appeals Tribunal was insufficient because it lacked equivalent discrimination expertise and could neither award compensation nor grant other discrimination-specific relief where the misconduct decision remained valid.

3. A national rule of judicial immunity could operate only consistently with EU law. The creation of a statutory disciplinary process could not deprive police officers of an effective and equivalent remedy for breach of their EU rights. The EU-law reasoning in Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943 was unsound. The court did not decide whether Heath had been correct to hold that the disciplinary body enjoyed judicial immunity at common law.

4. Read literally, section 42(1) of the Equality Act 2010 covered acts of the chief officer or responsible authority, but not the functions independently conferred on a misconduct panel. Sections 109(1) and 109(2) did not cure that gap: the panel was neither generally acting through employees nor exercising its statutory powers as the chief officer’s agent.

5. Section 42(1) had to be interpreted conformably with the Directive as extending, so far as EU law required, to acts of persons conducting misconduct meetings or hearings. That construction ran with the grain of legislation intended specifically to protect police constables and, by force of statute, displaced any common-law immunity barring a claim against the chief officer.

6. The conforming construction was broad and did not amount to judicial amendment of the statutory text. It could extend to other kinds of disciplinary panel where necessary to comply with the Directive. Lord Hughes added that judicial immunity ordinarily serves legitimate and proportionate purposes, but the resulting possibility of parallel proceedings before the Employment Tribunal and Police Appeals Tribunal was unavoidable under the existing legislation.

1. United Kingdom Supreme Court: Allowed the appeal unanimously and remitted the claim to the Employment Tribunal: [2017] UKSC 65.
2. Court of Appeal: Dismissed the appeal because the case was regarded as indistinguishable from Heath: [2016] EWCA Civ 2; [2016] IRLR 301.
3. Employment Appeal Tribunal: Dismissed the appeal by applying Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943.
4. Employment Tribunal: Struck out the discrimination claim on the ground that judicial immunity protected the misconduct panel’s decision and procedure from challenge.
5. Police Appeals Tribunal: Determined that the appellant’s separate disciplinary appeal would not proceed.