1/ Chief Constable of Avon & Somerset v Eckland - Who should the respondent be to a police officer's disability discrim claim against disciplinary decisions taken by the Independent Office for Police Conduct & a police misconduct tribunal? #ukemplaw assets.publishing.service.gov.uk/media/606c439d…
2/ The disciplinary process emanated from allegations E lied in evidence at a Crown Court, wrongly saying he visited a mortuary. The Ch. Const appointed the misconduct panel, who found E should be dismissed for gross misconduct. E appealed that decision but withdrew the appeal.
3/ E brought disability discrim claims solely against the Ch. Const reliant on depression & anxiety and events during his service & on dismissal. The claims against the Ch. Const included claims holding him liable for actions of the IOPC & the misconduct panel.
4/ The ET determined as a preliminary issue that C was entitled to bring those claims against the Ch. Const. On this appeal, E conceded the Ch. Const wasn't liable for discriminatory conduct by the IOPC & the ET had erred in finding he was.
5/ That left open to the EAT the question of how a claim is brought against the IOPC. Kerr J accepted the ET to be a more natural forum than the county court or (heaven forfend) admin court, & that such claim could be brought reliant on EqA ss.109-112's ancillary liabilities.
6/ In reaching that position, Kerr J made clear that he was not deciding whether a standalone discrimination claim could be brought against the IOPC in the ET rather than the county court in the absence of a primary claim against a chief constable & reliance on the ancillaries.
7/ Whilst it appeared clear from analogy with the Supreme Court's judgment in P v MPC that s.109's agency relationship didn't apply, Kerr J was not ruling out 1 of the other ancillary bases on a properly pleaded case.
8/ Moving on to the Ch. Const's liability for the misconduct panel, the EAT rejected some brilliantly constructed (& on their face attractive) arguments as to why the Ch. Const ought not to be liable. I can't do the arguments justice on Twitter but a couple of highlights follow.
9/ (i) The Ch Const was powerless to stop discrim by a misconduct panel & statutorily bound to implement their decision, even if discriminatory & thus unlawful. To make him liable in the ET & not them would immunise the discriminatory & penalise the non-discriminator.
10/ (ii) The panel had to be Art 6 ECHR compliant whilst the appellate tribunal from its decision, the Police Appeals Tribunal didn't. It couldn't revisit the facts & hence couldn't cure an Art 6 defect. This distinguished this situation from P v MPC where Art 6 played no part.
11/ As a result (if I follow correctly), the vicarious liability in P v MPC didn't apply & the only effective way to cure any Art 6 defect was to bring a claim directly against the panel, whether that had to be in the ET or the county court.
12/ E's response was that P v MPC applied, attributing to a chief constable the actions of a misconduct panel. Art 6 was inapplicable to E's case, a red herring & not a matter appropriate for the Ch. Const to worry about on E's behalf.
13/ Moreover, E countered the Ch. Const's powerlessness assertions by noting the possibility of bringing a JR against a recalcitrant misconduct panel exposing the Chief to a discrimination claim.
14/ E's counsel also ran Art 14 (with Art 6) 'other status' argument on account that it would put police officers at a disadvantage in respect of compliance with Art 6 rights relating to determining their civil rights to exercise their profession.
15/ The EAT sided with E & upheld the ET's decision on this point. He rejected any possibility of E having to bring his claims in 2 jurisdictions against 2 respondents/defendants as being a breach of Framework Directive rights vis-a-vis the EU principle of effectiveness.
16/ A purposive construction of EqA s.42 could treat holding office as a constable as employment by those conducting a misconduct hearing so that Framework Directive rights could be asserted against a Ch. Const as liable for the panel's discrimination.
17/ It was necessary for the Ch Const to be vicariously liable for the misconduct panel in the same way as in P v MPC, as otherwise the EU principles of effectiveness & equivalence would be offended against by requiring claims against the panel members in the county court.
18/ Finally, the EAT moved on to the most important and fundamental ground of appeal you're likely to see this year. Is it an error of law for an EJ to copy and paste @MilsomChr's skeleton argument? Here's a table of the similarities!
19/ To my mind it's a pretty sensible approach for an EJ to take, but the EAT found it showed a lack of even handedness - adopting one side's case & rejecting the other side's wasn't reasoned adjudication. However, the EAT held it had no bearing on the appeal so nobody need worry
20/ It looks as if the EAT's position on the Chief Constable's vicarious liability for misconduct panels will go further, perhaps even with a case to leapfrog given that the CA may feel hamstrung by P v MPC.
21/ Personally I think @MilsomChr should get his client to appeal against the finding that it's an error of law for an EJ to adopt his skeleton, but that may offend against the rule of thumb not to get a client to appeal on a point only of interest to counsel! #ukemplaw

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More from @JasonBraier

1 Apr
1/ De Lacey v Wechseln Ltd - This is a real thread about a real case. I promise! I really do. Look, it's got a link to the judgment & everything: bailii.org/uk/cases/UKEAT…

And it's a useful one on discriminatory constructive disimssal, so have a read.

2/ DL was a trainee hair stylist. In May 2015 she found out she was pregnant. She was on maternity leave from Oct '15 to Sept '16 & resigned the following January. She brought claims of pregnancy, maternity & sex discrim as well as unfair dismissal.
3/ DL relied on events during the period post-announcement & pre-maternity leave as well as the period between return & resignation as a course of discriminatory conduct. She relied on being made to clean up dog poo in front of other trainees as a last straw.
Read 15 tweets
1 Apr
1/ Day v Phool Industries Ltd - EAT holds BHS v Burchell non-compliant with ECHR Article 6 & Article 14 read with Article 8. Lord Summers finds reasonableness of misconduct dismissal must be objectively determined at the time of trial. #ukemplaw
2/ In a surprisingly brief judgment given the topic, Lord Summers places reliance on Lady Hale's comments in Reilly v Sandwell & the ECHR case of Denisov v Ukraine in finding Burchell should not have been relied upon once the Human Rights Act came into force.
3/ The judgment will raise eyebrows and will doubtless be appealed. If upheld, it will lead to a fundamental shift in the care with which employers will have to conduct disciplinary processes, & to far lengthier unfair dismissal trials.
Read 4 tweets
31 Mar
1/ Price v Powys CC: Is it direct sex discrimination to pay a man a lower amount for shared parental leave than a woman for adoption leave? No, held the EAT (unsurprisingly). assets.publishing.service.gov.uk/media/606448fa… #ukemplaw
2/ Mr Price & his wife decided that when they had their 1st child he would stay at home whilst she would return to work after the 2-week period of compulsory maternity leave. Having learned he'd be paid SMP rates, Mr Price didn't proceed with the shared parental leave application
3/ Instead he brought a claim on the basis the policy was sexually discriminatory as Powys paid higher rates to those on statutory maternity leave & on adoption leave. The ET rejected the 1st comparator in line with Capita v Ali & the 2nd in light of particularities of adoption. Image
Read 8 tweets
26 Mar
1/ As you'll know, the nub of Asfa v Brierly is whether female retail workers should be paid the same as male distribution centre workers because they do work of equal value & there's not a material factor justifying the difference in terms relating to pay. #ukemplaw
2/ This part of the case was concerned simply with the question of whether retail store workers could legitimately rely on distribution centre workers at all as comparators. It's a question contingent on interpreting EqA s.79(4) (particularly subpara (c)):
3/ It was Asda's submission that common terms were not applied & hence the distribution workers were not comparators under s.79(2), thereby scuppering the 35,000 claimants' equal pay claims:
Read 18 tweets
25 Mar
1/ Mukoro v IWGB: EAT holds an ET wrong to refuse to adjourn a strike out hearing when the disabled LiP claimant attended an emergency dental appointment for immediate medical treatment for an excruciating abscess on the day of the hearing. bailii.org/uk/cases/UKEAT… #ukemplaw
2/ The application to adjourn followed a history of adjournments of earlier hearings for health reasons (C being disabled by anxiety), which may have led EJ Snelson to view this application with some suspicion. He put back the hearing by 2 hours & emailed M's daughter as follows:
3/ There was no reply to that email & EJ Snelson heard the case, refused the application to adjourn in M's absence & acceded to the application to strike out the remainder of M's case. Here is what EJ Snelson wrote about refusing the adjournment application:
Read 12 tweets
16 Mar
1/ Mallon v Aecom Ltd: EAT allows appeal against strike out of a dyspraxic's reasonable adjustment claim concerned with the disadvantage in having to fill in online job application forms. assets.publishing.service.gov.uk/media/6037b49f… #ukemplaw
2/ Mr Mallon was a serial claimant, having brought over 30 similar claims, 29 of which he'd withdrawn and three of which he'd lost (one with costs). I suspect that heavily influenced the EJ confronted with a strike out application.
3/ The EJ analysed the case on the basis of a PCP to apply by way of an online form. It held M did not suffer a substantial disadvantage given that he could get help and doubtless influenced by knowledge that M had filled in online forms elsewhere (including for the ET claims).
Read 8 tweets

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