The Commissioner of Police of the Metropolis, R (on the application of) v Police Misconduct Tribunal

In judicial review of police misconduct proceedings, the lawfulness of a tribunal’s decision is judged by reference to the case advanced at the hearing. A tribunal may find that discriminatory language breaches the Equality and Diversity standard even where the conduct does not amount to unlawful harassment under the Equality Act 2010. However, it is not required to determine an unargued case on that basis.

The Outcomes Guidance provides a general framework, not a mandatory template. Panels must assess seriousness, consider the purposes of disciplinary action, and choose a proportionate sanction, while retaining evaluative discretion. A reviewing court must recognise the panel’s expertise and intervene only for public-law error or an outcome that is clearly inappropriate.

The Commissioner challenged a Police Misconduct Tribunal’s decision concerning a police sergeant who admitted making sexually offensive comments to two junior female colleagues. The Tribunal found breaches of the Authority, Respect and Courtesy and Discreditable Conduct standards amounting to gross misconduct, but found no breach of Equality and Diversity. It imposed a two-year final written warning.

The judicial review alleged that the Equality and Diversity finding was unlawful or irrational and that the sanction was unlawful or irrational. The central issues were whether the Tribunal had unlawfully confined Equality and Diversity to harassment under the Equality Act 2010, and whether its assessment of seriousness and sanction involved legal error or irrationality.

1. Ground One dismissed. It would have been open to the Tribunal to find that the use of discriminatory language breached the Equality and Diversity standard, even without a breach of the Equality Act 2010. The standard extends beyond unlawful discrimination and requires officers to act with fairness and impartiality and not discriminate unlawfully or unfairly.
2. However, the case before the Tribunal was principally advanced as harassment under section 26 of the Equality Act 2010. The alternative case was understood as unlawful or unfair discrimination, without an adequate explanation that discriminatory language falling outside the Act was itself relied upon. The Tribunal and the interested party were entitled to proceed on that basis. The judicial review claim could not be advanced on a materially different case.
3. Ground Two dismissed. The Outcomes Guidance reflected the three-stage approach in Fuglers LLP v Solicitors Regulation Authority: assess seriousness, keep in mind the purpose of disciplinary sanctions, and choose the sanction that most appropriately fulfils that purpose. Within seriousness, culpability, harm, aggravating factors and mitigating factors are relevant. The Guidance is not a route map or template and permits overlap between factors.
4. The Tribunal properly considered the officer’s supervisory position, the repeated conduct, public confidence, the absence of harassment or predatory behaviour, admissions, remorse, insight and personal mitigation. Its final written warning was within the range reasonably open to it and was not clearly inappropriate. The Tribunal’s reasons, read as a whole, were adequate.
5. The application for judicial review was dismissed.

First-instance judicial review in the Administrative Court. Permission was granted on both grounds by HHJ Dight CBE on 11 March 2025. The claim was dismissed.