Chief Constable of Police not liable for acts of discrimination committed by the IOPC but liable for acts of discrimination by misconduct panels19/04/21
In the case of Chief Constable of Avon and Somerset Constabulary v Eckland, the Employment Appeal Tribunal (EAT) has found that the Chief Constable of Police was not liable for disability discrimination committed by the Independent Office for Police Conduct (IOPC). However, the Employment Tribunal was correct to hold that the Chief Constable was liable for any disability discrimination by the statutory police misconduct panel which determined disciplinary allegations against the claimant police officer.
E, a police officer, was dismissed for gross misconduct following an allegation that he had committed perjury. The allegation was investigated by the IOPC and the disciplinary proceedings were determined by the police misconduct tribunal.
Following his dismissal E brought a claim for disability discrimination before the Employment Tribunal (ET), during the course of which the ET had to identify the correct Respondent in the claim. The ET found that the Chief Constable was the correct Respondent, albeit that E’s complaints related to the Director General of the IOPC, and this finding was appealed to the EAT.
The EAT had to consider three grounds of appeal. However, for the purposes of this alert we will focus on the first two, namely:
First ground: the judge erred in deciding that the Chief Constable could be held liable for discriminatory acts of the IOPC’s Director General
The appeal to the EAT was supported by both parties to the claim, on the basis that the Chief Constable could not be held liable for any discriminatory acts on the part of the IOPC. The EAT upheld the appeal and overturned the ET’s finding on this issue.
Interestingly, the EAT went on to find that where there are related complaints against both the Chief Constable and the IOPC, such as where there is a claim of vicarious liability, both of these complaints can be heard together by the ET rather than the claim against the IOPC having to proceed separately in the county court. However, this does not mean that a freestanding discrimination claim against the IOPC by a police officer that arises out of the IOPC’s statutory disciplinary process can be brought in an ET. Where such a claim is not linked to a claim against the Chief Constable, it would still need to be pursued in the county court.
Second ground: the judge erred in deciding that the Chief Constable could be held liable for discriminatory acts by a statutory police misconduct panel
There was lengthy legal argument on this ground but, in essence, it was the Chief Constable’s position that the law should not protect the discriminator (the panel) and penalise the innocent non-discriminator (the Chief Constable). Rather, it should provide for a remedy against the discriminator, and does so, whether in the county court or in the ET.
However, the Chief Constable’s arguments were rejected by the EAT. It held that the claimant should not have to bring a claim in the county court against the panel or its members under the Equality Act as this would not fully respect a police officer’s Framework Directive right to equal treatment and the principles of equivalence and effectiveness. To do otherwise would mean that a police officer would have to litigate the same cause in two different venues, one of them costs bearing.
The EAT recognised that: “…[assigning] legal liability for acts of discrimination by a misconduct panel involves hardship to chief constables and that they may face practical difficulties in deciding whether to defend claims and in securing cooperation from panel members…”. However, it found that this was fair and would ensure that police officers right to equal treatment and equivalence was maintained.
The case will now proceed to the Employment Tribunal for consideration.
What to take away
This case serves as a reminder that it is always important to identify the correct respondent in any claim, particularly in a discrimination claim where the liability might not rest solely with the employer. It is also a cautionary tale for the IOPC that it may find itself defending a claim in an Employment Tribunal, even where it is not the employee of the claimant.
It will also disappoint police forces as the EAT has decided that they will be fixed with liability for discriminatory conduct by misconduct panels. The EAT acknowledged that: “… judicial review is an awkward remedy for a chief constable concerned to rein in discrimination by a misconduct panel, for which the chief constable may later have to answer before an employment tribunal…”; however, the EAT felt that the solution to this difficult issue was a matter for Parliament.
At the time of writing we do not know whether the Chief Constable will be appealing this decision. However, we suspect that this decision is not the last word on this issue.
How Capsticks can help
Capsticks has significant experience of supporting employers to prevent discrimination and harassment (by drafting equality and diversity policies, codes of conduct and delivering training to employees at all levels) and also to deal with any complaints that may arise (by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims).
For further information as to how this issue might affect your organisation, please contact Paul McFarlane, Anna Semprini or Raj Chahal.