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The primacy of EU law: asserting the right to equal treatment v judicial immunity

8 November 2017

Maya Sikand and Laura Profumo, members of our Civil Liberties and Human Rights team, discuss the impact of the recent Supreme Court decision in P (Appellant) v Commissioner of Police of the Metropolis (Respondent) [2017] UKSC 65.

In this case, the Supreme Court addresses the interplay between the EU principle of equal treatment and the common law rule of core judicial immunity within the context of police disciplinary proceedings. It is a ground-breaking judgment as far the employment rights of police officers are concerned, but does it also have wider ramifications?

Facts

The appellant was assaulted in 2010 whilst serving as a police officer, and subsequently suffered PTSD. In 2011 she was arrested following an incident which she asserted was related to her PTSD. After investigation, she was made the subject of a disciplinary charge before a police misconduct panel (“the panel”). Whilst she accepted she was guilty of the alleged misconduct, the Appellant relied on her PTSD in mitigation. Notwithstanding this, on 12 November 2012, the panel decided that she should be dismissed without notice.

The appellant appealed against her dismissal to the Employment Tribunal, where she claimed the decision to dismiss her constituted disability discrimination, disability-related harassment, and a consequent failure to make reasonable adjustments, in contravention of the Employment Equality Framework Directive 2000/78/EC (“the Framework Directive”) as implemented by the Equality Act 2010. She brought a parallel appeal against the dismissal to the Police Appeals Tribunal under the separate statutory scheme. In June 2013, the Employment Tribunal struck out her claim, and in March 2014, the Employment Appeal Tribunal dismissed her appeal. The basis of both decisions was that the panel was a judicial body which enjoys immunity from suit.

The Decision Subject to Appeal

The Court of Appeal ([2016] EWCA Civ 2) similarly dismissed the appellant’s appeal on the basis that it was indistinguishable from Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943; [2005] ICR 329. In Heath, the Court of Appeal upheld the Employment Appeal Tribunal’s decision that it had no jurisdiction to hear the officer’s complaint of unlawful sexual discrimination made against the panel on the basis that such proceedings were judicial, or at least quasi-judicial [para 45], and the Respondent was thus immune from action. Lord Justice Auld held that the Equal Treatment Directive 76/207 (as it then was) could not displace the absolute immunity rule as, “while eradication of unlawful discrimination…is an imperative, it is not of such overriding importance in comparison with fundamental norms of our law” [at 93]. In essence, the terms of the Directive allowed for qualification within the margin for appreciation, in view of the “strong public policy interest” for absolute judicial immunity [at 95].

Whilst Heath was upheld by the Court of Appeal, Lord Justice Laws sounded a note of caution in his judgment [at 24]:

If I am right, it would appear that claims of discriminatory dismissal brought by police officers, where the effective dismissing agent is a disciplinary Panel such as was convened here, will not be viable in the Employment Tribunals; yet Parliament has legislated to allow such claims to be made

The EU Directive

The Framework Directive confers the directly effective right to be treated in accordance with the principle of equal treatment in relation to employment and working conditions, including dismissals, as outlined in Article 3 (1)(c).

The UK is obliged, under Article 9(1), to ensure that “judicial and/or administrative procedures … for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them”. Article 17 correspondingly requires the imposition of “effective, proportionate, and dissuasive” sanctions for any resultant infringements of the Framework Directive, as reflected in the domestic provisions of the Equality Act 2010.

Part 5 of the Equality Act 2010 concerns the prohibition of discrimination within the employment context. Of particular note is section 42(1) which confers on police constables the right to bring proceedings in Employment Tribunals to challenge discrimination by chief officers and responsible authorities. Section 120 confirms the jurisdiction of the Employment Tribunal to determine such complaints under Part 5.

The Supreme Court

The Supreme Court unanimously allowed the appeal, finding that EU law affords police officers the right to bring claims in the Employment Tribunal, in respect of proceedings before a police misconduct panel. Such claims cannot be barred by judicial immunity. Lord Reed gave the lead judgment, offering a considered précis of the scope of the Framework Directive, and its incorporation into domestic law.

Lord Reed firmly maintained that, where directly effective EU rights are at play, EU law must be “the starting point…(and) finishing point” [para 27] of any analysis, given its primacy over domestic law. The principles of both equivalence and effectiveness mandate that police officers must be able to bring discrimination claims, based on treatment contrary to the Framework Directive, before Employment Tribunals [para 29]. Accordingly, Lord Reed held that:

There can be no question of the United Kingdom being entitled to deny police officers an effective remedy, where their rights being infringed, as a matter falling with a national margin of appreciation” [para 30].

Turning to s.42(1) of the Equality Act 2010, Lord Reed held that Parliament plainly envisaged that disciplinary proceedings in relation to police officers would be susceptible to challenge in the Employment Tribunals.  However, read literally, the Act does not extend to the disciplinary functions entrusted to a police misconduct panel, as these are not acts done by the chief officer or responsible authority within the meaning of s.42(1).  Lord Reed’s solution was to offer a conforming interpretation of s.42(1), as applying to the disciplinary functions by police misconduct panels, readings words into s.42(1)(a) to that effect. He underlined that such an interpretation in no way amended the legislation, but simply interpreted it in a way which was concordant with EU law.  

The effect of this construction is that the statutory misconduct process, where it might otherwise attract judicial immunity under domestic law, cannot operate to disbar complaints under the Framework Directive. The case of Heath was consequently overruled, Lord Reed finding its reasoning (in so far as it held that EU Law could not displace the common law rule of judicial immunity) was unsound. The appeal was allowed, and the case remitted to the Employment Tribunal.

In his concurring judgment, Lord Hughes offered valuable commentary on the undesirable “division of justiciability” between the Employment Tribunal and statutory Police Appeals Tribunal [para 38]: whilst only the former can grant discrimination-related relief, only the latter can direct an alteration to the outcome of such disciplinary proceedings. This structure inevitably leads to collateral proceedings and is ripe for review [para 39].

Comment

The Supreme Court has broadened the statutory circumstances in which police officers can access the Employment Tribunal, opening the door to claims of discrimination arising from the decision-making process of the misconduct panel itself. In so doing, the Supreme Court has overturned a decisive line of earlier Court of Appeal authority, culminating in Heath v Commissioner of Police of the Metropolis, which relied on the panel’s immunity from suit as a bar to such claims. The judgment fills the gap in the Equality Act 2010, holding that the relevant provisions treating police officers as employees (not holders of office) must be read so as to give direct effect to the Framework Directive, overriding the principle of judicial immunity. This means allegations of discrimination relating to such misconduct panels, including the ultimate decision to dismiss, are justiciable in the Employment Tribunals.  It is of note that Lord Reed was silent on the issue of whether such panels were otherwise immune from suite under domestic legislation.

It is clear the Supreme Court is increasingly anxious to delimit the jurisdiction of regulatory panels across the board. Shortly after the instant judgment, it considered the issue once more in Michalak v General Medical Council [2017] UKSC 71, albeit removed from the context of EU law. In his leading judgment, Lord Kerr held that the availability of judicial review proceedings for GMC acts and decisions did not oust the jurisdiction of the Employment Tribunal to hear discrimination claims. The case largely turned on the construction of appeal proceedings under s.120 (7) of the Equality Act 2010, concluding that judicial review did not constitute an overriding route of appeal, but rather a collateral challenge, given its limited means of redress [para 16-18]. The impact of this case, when taken with P, is that the Employment Tribunal will now stand as the natural means of recourse for employees seeking to challenge the decisions of professional bodies. Neither judicial review, nor the spectre of judicial immunity, will disbar access.

How this looks through the converse lens, for those of us who specialise in claims against the police, is as yet unclear. The amplification of police officers’ rights to challenge the disciplinary process may well lead to more defensive decision–making by such panels. This may in turn lead to an even weaker police disciplinary system, in which abuses of power by police officers are minimised. The disconnect between such disciplinary proceedings and successful civil actions may well become even more acute.

Nevertheless, this is an important decision, albeit one which, in extolling the primacy of EU workers’ rights, may well sit uneasily in the present climate.

 

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