Nicholas Eckland v Chief Constable of the Avon and Somerset Constabulary

For disability discrimination claims by police constables, the acts and omissions of an independent police misconduct panel are treated, under the conforming interpretation of section 42(1)(a) of the Equality Act 2010, as acts of the chief officer. That interpretation applies notwithstanding changes from the 2008 to the 2012 misconduct regulations.

An alternative claim against the panel under section 29(6) does not provide an equivalent remedy merely because it may be available in the County Court. Differences in specialist expertise, costs, fees and remedies are material. The Employment Tribunal therefore remains the appropriate forum, and the appeal was dismissed.

A constable alleged disability discrimination in connection with an Independent Office for Police Conduct investigation and a police misconduct panel’s decision to dismiss him. He brought claims under sections 15 and 21 of the Equality Act 2010 against the Chief Constable.

The Employment Tribunal rejected a jurisdictional objection. The Employment Appeal Tribunal dismissed the appeal in relation to the misconduct panel, while allowing it by concession concerning the IOPC. The Chief Constable appealed on the panel issue, arguing that the relevant Supreme Court authority was distinguishable under the amended regulations or had proceeded on the basis of an incorrect assumption about alternative remedies.

The central issue was whether the Chief Constable was legally responsible for acts and omissions of the independent misconduct panel.

Disposition

Underhill LJ, with whom Coulson LJ and Carr LJ agreed, dismissed the appeal. The Chief Constable was liable for the acts and omissions of the misconduct panel for the purposes of the claimant’s discrimination claims.

1. Binding effect of the Supreme Court authority. The decision in P v Commissioner of Police for the Metropolis [2017] UKSC 65 required section 42(1)(a) of the Equality Act 2010 to be interpreted conformably with the Framework Directive so that misconduct-panel acts were attributed to the chief officer. That reasoning was not confined to the 2008 Regulations. The 2015 and 2017 amendments did not remove the functional independence which created the original remedial problem.
2. Alternative Part 3 remedy. Even if a claim could be brought against the panel under section 29(6), it would not be equivalent to a Part 5 claim in the Employment Tribunal. The County Court and Employment Tribunal differed materially in specialist employment-discrimination expertise, costs, fees and remedial powers. The alternative remedy might also fail the effectiveness requirement, but that issue did not need to be decided.
3. Choice of conforming interpretation. Although the Marleasing principle could in principle permit section 120(1)(a) to be read down, that was unnecessary and inappropriate. Reading section 42(1)(a) as attributing panel acts to the chief officer was more consistent with the employment relationship, the allocation of compensation and the practical difficulties of imposing liability on panel members. The potential inability to rely on section 109(4) did not make that result axiomatically unjust.
4. Precedent and unresolved issues. The court considered the argument based on Kadhim v Housing Benefit Board, Brent [2000] EWCA Civ 344, but held that the supposed alternative remedy did not undermine the binding effect of the Supreme Court decision. It was not open to the Court of Appeal to treat that decision as per incuriam. The court did not decide whether the panel exercised a public function under section 29(6), and expressed no view on the EAT’s analysis of possible IOPC secondary liability.

• Court of Appeal (Civil Division) dismissed the Chief Constable’s appeal and held that the Chief Constable was responsible for the misconduct panel’s acts and omissions.
• Employment Appeal Tribunal Kerr J dismissed the appeal concerning the misconduct panel in [2021] UKEAT 0123_20_1802. By concession, the appeal was allowed concerning claims based on the IOPC’s acts or omissions.
• Employment Tribunal Employment Judge Harper rejected the Chief Constable’s preliminary jurisdictional objection.