Thread by @JasonBraier

1/ 🚨Eckland v Chief Constable Avon & Somerset: CA holds police officers wanting to claim discrimination against misconduct panels can bring the claim in the ET against the Chief Constable.
Comments on equivalence of particular interest.
bailii.org/ew/cases/EWCA/…
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2/ PC Eckland had given false evidence in a criminal trial & was subject to misconduct proceedings as a result. The panel decided to dismiss him. PC Eckland claimed his false evidence resulted from mental impairment & the dismissal was s.15 discrimination arising from disability.

3/ He brought a claim in the ET against his Chief Constable. The question was whether the Chief was an appropriate respondent & whether the ET was the correct venue.

4/ As a matter of structure, the Chief is responsible for appointing the misconduct panel of 3 members. They used (until 2015) to be chaired by an Asst Ch Constable alongside a superintendent & a lay person chosen from a list maintained by the police authority.

5/ Amendment Regs in 2015 changed the chair to a legally qualified chair from a list of persons nominated by the local policing body (hence it's one of those part-time quasi-judicial roles that barristers & solicitors often do).

6/ Whilst police officers aren't employees under s.83 EqA, s.42 provides for their job to be treated as employment by the chief officer in respect of any act done by that chief officer in relation to a constable.

7/ There's a distinct difference between ordinary employment disciplinary proceedings & police misconduct proceedings, given the requirement for the latter to be determined independently & the possibility of a JR challenge to a police misconduct decision.

8/ In P v Met Police Commissioner, the Sup Ct held re the pre-2015 procedure (under 2008 Regs) that given the panel's independence from the chief officer & given that panels were empowered directly by 2ndary legislation, the panel wasn't acting as employee or agent of the chief.

9/ On its face, s.42 EqA didn't apply. However, the Sup Ct considered the CJEU principles of effectiveness & equivalence given the entitlement to enforce rights under the Equal Treatment Directive. The Sup Ct held that must result in officers bringing ETD claims before the ET.

10/ As you can see, the Sup Ct relied on ETs' expertise & power to award a range of remedies as fulfilling the requirements of effectiveness, & that leaving officers solely with a right of appeal to the Police Appeals Tribunal wouldn't suffice for equivalence purposes.

11/ To overcome this seemingly binding Sup Ct authority on the exact matter before the CA, the chief constable sought to argue a number of points. 1st was that P concerned an earlier regime. The CA wasn't interested in that argument - the independence existed under both regimes.

12/ 2ndly, the chief constable argued that P wasn't binding because the Supreme Court decided the ratio on the basis of an incorrect assumption which hadn't been argued before it or considered by it.
That assumption was that no other legal route existed when in fact it did.

13/ The chief constable pointed to s.29(6) EqA concerned with provision of a service in the exercise of a public function, a term encompassing functions of a public nature for the purposes of the Human Rights Act.

14/ Rather than look to a conclusion as to whether s.29(6) might apply, the CA presupposed it did & then asked itself whether that route met the effectiveness & equivalence requirements under EU law.

Crucial to that assessment is that s.29(6) claims are brought in the county ct

15/ The CA held a right to bring a discrimination claim in the county ct wasn't equivalent to pursuing it in the ET.

Reliance was placed in particular on (i) ET expertise in discrim in employment; (ii) different costs regimes; (iii) lack of recommendations as a county ct remedy

16/ In P, the Sup Ct had resolved the s.42 difficulties by adopting a Marleasing interpretation to add in words to render the chief officer the respondent when a misconduct panel's decision is challenged under the EqA.

17/ In the present case, the Chief Constable sought to set up a battle of Marleasing constructions, by suggesting that s.120(1)(a) EqA could have words read in to confer jurisdiction on the ET to hear s.29(6) claims brought against the misconduct panel members.

18/ The CA didn't like that submission. Marleasing applies on a necessity basis. The P approach was the more appropriate in the battle, & applying a Marleasing approach to s.42 would remove any necessity to apply such a construction to s.120.

19/ In reaching that conclusion, the CA noted that misconduct panels are focused on the relationship between chief officer & a member of their force, thus a quasi-employment matter, & rejected complaint that chief officers would be vicariously liable for the panel's actions.

20/ The CA also raised practical concerns with splitting off liability for the panel's decision from complaints about other EqA breaches which fall more squarely within a normal reading of s.42, leading to real difficulties in distinguishing loss in assessing compensation.

21/ Finally, the CA was concerned about the impact of making panel members personally liable to defending discrimination allegations, & how greatly that would discourage qualified people from agreeing to sit on panels, especially with professional indemnity insurance unavailable.

22/ So P still applies & has been strengthened by its express consideration for subsequent regulatory regimes & by a careful analysis of the reasons why effectiveness & equivalence require EqA allegations against misconduct panels to be in the ET against the chief officer.

23/ Colleagues who sit on these panels can breathe a sigh of relief and can continue to do so, reassured that they won't be held personally liable to respond to claims of discrimination made by former police officers aggrieved at having had their careers ended.
#ukemplaw