Nicholas Eckland v Chief Constable of the Avon and Somerset Constabulary

The Court of Appeal dismissed the Chief Constable's appeal and held that, for the purposes of disability discrimination claims under the Equality Act 2010, the acts and omissions of an independent police misconduct panel are to be treated as attributable to the chief officer. The court was bound by the Supreme Court decision in P v Commissioner of Police for the Metropolis [2017] UKSC 65 and applied the Marleasing conforming-interpretation approach to section 42(1) of the Equality Act 2010. The court rejected the appellant's contention that P could be distinguished because it concerned earlier regulations and rejected the submission that an alternative remedial route under section 29(6) (Part 3) provided an equivalent remedy, principally because claims under Part 3 must be brought in the County Court which is not equivalent to the Employment Tribunal in expertise, costs regime, remedies and accessibility.

Background and parties: The claimant was a serving detective sergeant dismissed by a police misconduct panel after giving false evidence. He sued the Chief Constable in the Employment Tribunal for disability discrimination under the Equality Act 2010 (relying on sections 15 and 21). The Chief Constable raised a preliminary objection that she was not legally responsible for the acts of the Independent Office for Police Conduct (IOPC) or the independent misconduct panel. The ET (Employment Judge Harper) dismissed that objection. The Employment Appeal Tribunal (Kerr J) dismissed the Chief Constable's appeal except insofar as the claimant sought to proceed against the Chief Constable in respect of acts of the IOPC (that part was conceded and is no longer live). The Chief Constable appealed to the Court of Appeal.

Nature of the claim and relief sought: A claim of unlawful disability discrimination (including failure to make reasonable adjustments) under the Equality Act 2010 arising from misconduct proceedings and dismissal by an independent police misconduct panel; the claimant sought to proceed in the Employment Tribunal against the Chief Constable.

Issues for the court:

• Whether the Supreme Court’s decision in P required the Court of Appeal to treat the acts of a police misconduct panel as attributable to the chief officer for Part 5 claims under the Equality Act 2010.
• Whether P could be distinguished because it concerned earlier regulations (2008) as opposed to the 2012 Regulations as amended.
• Whether, alternatively, an effective and equivalent remedy existed by proceeding against the panel itself under section 29(6) (Part 3) in the County Court, such that the conforming interpretation applied in P was unnecessary.

Reasoning and key holdings: The court held that P was applicable and binding. Lord Reed’s Marleasing-style conforming interpretation of section 42(1) should be applied so that the acts of misconduct panels falling within the scope of the Framework Directive are treated as acts of the chief officer. The differences between the 2008 and amended 2012 Regulations did not undermine P. The court then examined the proposed alternative remedy under section 29(6) and concluded it is not equivalent to a Part 5 claim in the Employment Tribunal because: the Employment Tribunal has specialist expertise in employment discrimination; the costs regimes and fees differ materially; the remedies available differ (the ET can make recommendations and has different remedial powers); and practical and policy considerations favour the chief officer being the respondent. Because the County Court route under Part 3 is not equivalent, P remains binding and the correct approach is to treat the chief officer as the respondent. The Court therefore dismissed the appeal.

Procedural posture: Appeal from Kerr J in the EAT ([2021] UKEAT 0123_20_1802); several interveners were permitted to assist (NALQC, IOPC, APCC).

Appeal dismissed. The Court of Appeal held that it was bound by the Supreme Court’s decision in P v Commissioner of Police for the Metropolis to treat, for the purposes of Part 5 of the Equality Act 2010, acts of a police misconduct panel as attributable to the chief officer; and that an alternative remedy under section 29(6) (Part 3) in the County Court would not provide an equivalent forum or remedies to the Employment Tribunal, so the conforming interpretation adopted in P remains necessary.

Employment Tribunal (preliminary hearing, Employment Judge Harper MBE) — preliminary objection dismissed (17 February 2020). Employment Appeal Tribunal (Kerr J) — appeal dismissed except by concession in respect of claims against the IOPC ([2021] UKEAT 0123_20_1802). Court of Appeal — appeal dismissed ([2021] EWCA Civ 1961).