P v Commissioner of Police of the Metropolis

The Supreme Court held that police officers have directly effective rights under Council Directive 2000/78/EC (the Framework Directive) to the principle of equal treatment in relation to employment, including dismissal, and that those rights must be enforceable by means which are effective and equivalent to domestic remedies. The common-law rule of judicial immunity cannot be applied so as to deprive police officers of an effective and equivalent remedy before the Employment Tribunal when the alleged discriminatory conduct arises from persons conducting a misconduct hearing.

To give effect to EU law the court read section 42(1) of the Equality Act 2010 conformably with the Directive so as to treat acts of persons conducting misconduct meetings or misconduct hearings in relation to constables as acts of the chief officer (or responsible authority) for the purposes of Part 5 of the Act. Because the reasoning in Heath v Commissioner of Police of the Metropolis was incompatible with those EU-law obligations, the Supreme Court allowed the appeal and remitted the claimant's case to the Employment Tribunal.

Background and facts: The appellant, a serving police constable, suffered post-traumatic stress disorder following an assault and later was the subject of a misconduct hearing under the Police (Conduct) Regulations 2008 after an incident in 2011. The panel found gross misconduct and dismissed her without notice. She brought claims in an Employment Tribunal under the Equality Act 2010 alleging discrimination arising from disability, harassment related to disability and failure to make reasonable adjustments.

Procedural history: The Employment Tribunal struck out the claim on the basis that the misconduct panel and its members enjoyed judicial immunity. The Employment Appeal Tribunal dismissed the appeal. The Court of Appeal ([2016] EWCA Civ 2; [2016] IRLR 301) dismissed a further appeal, following the reasoning in Heath v Commissioner of Police of the Metropolis ([2004] EWCA Civ 943). The case then came to the Supreme Court.

Nature of the claim and relief sought: The claimant sought a tribunal determination that the decision to dismiss constituted discrimination arising from disability and disability-related harassment, together with remedies available under the Equality Act 2010 (including potential compensation and declarations), and argued that the dismissal was consequential upon a failure to make reasonable adjustments.

Issues framed by the court: (i) Whether directly effective rights under the Framework Directive required that police officers be able to enforce equal treatment rights in Employment Tribunals despite any common-law judicial immunity attaching to members of misconduct panels; (ii) whether section 42(1) of the Equality Act 2010 and related provisions gave effect to those rights; and (iii) whether a conforming interpretation of domestic legislation was required to secure compliance with the Directive.

Court’s reasoning and decision: The court began from EU law: article 3(1) of the Framework Directive covers employment and dismissals and article 9(1) requires effective judicial or administrative procedures to enforce the Directive. Applying the principles of effectiveness and equivalence, the court concluded that Employment Tribunals are the appropriate forum to hear discrimination complaints by police officers because they are specialist tribunals with power to grant effective remedies including compensation and declarations. To leave complainants only the Police Appeals Tribunal would breach those principles because it lacks the same remedial powers and expertise.

The court rejected the view that national rules of judicial immunity could prevent Employment Tribunal jurisdiction where such immunity would render ineffective enforcement of EU equal treatment rights. To avoid such incompatibility the court read section 42(1) of the Equality Act 2010 conformably with the Directive: it should be understood as treating, for the purposes of Part 5, acts done by persons conducting misconduct meetings or misconduct hearings in relation to a constable as acts of the chief officer or responsible authority. The court relied on established principles allowing domestic law to be interpreted in conformity with EU law (Marleasing). As a result, the Court found the Court of Appeal’s reasoning in Heath unsound insofar as it denied Employment Tribunal jurisdiction, allowed the appeal and remitted the matter to the Employment Tribunal.

The court noted, however, that this conforming interpretation does not amount to legislating and that potential for parallel or collateral proceedings between Employment Tribunals and Police Appeals Tribunal remains.

Appeal allowed. The Supreme Court held that the Framework Directive confers directly effective rights on police officers to equal treatment in relation to employment and dismissals, and that EU law requires effective and equivalent remedies. The principle of judicial immunity cannot be applied so as to deny Employment Tribunal jurisdiction in cases where the alleged discrimination arises from persons conducting misconduct hearings. Section 42(1) of the Equality Act 2010 must be read, insofar as is necessary to comply with EU law, as treating acts by persons conducting misconduct meetings or misconduct hearings in relation to a constable as acts of the chief officer or responsible authority for the purposes of Part 5. The case was remitted to the Employment Tribunal.

Employment Tribunal: claim struck out (judicial immunity). Employment Appeal Tribunal: appeal dismissed. Court of Appeal: appeal dismissed [2016] EWCA Civ 2; [2016] IRLR 301. Supreme Court: appeal allowed [2017] UKSC 65.