Kent Constabulary v Baskerville

1. THE VICE-CHANCELLOR: Lord Justice Peter Gibson will give the first judgment.

2. LORD JUSTICE PETER GIBSON: It has long been recognised that at common law a police constable is the holder of an office and not an employee. This may explain why Parliament thought it necessary to enact special provisions relating to the police in each of the Acts constituting the current discrimination legislation. In the first Act which made express provision against discrimination in the field of employment, the Race Relations Act 1968, it was provided that for the purposes of that Act the office of a constable should be treated as if it were employment, and that for those purposes a constable should be treated as if he were employed by the authority by whom he was appointed (see section 27 (4)). But in subsequent discrimination legislation, commencing with the Sex Discrimination Act 1975 ("the 1975 Act") followed by the Race Relations Act 1976 ("the 1976 Act"), different provisions in what on their face might seem to be more limited form were enacted to deal with the position of the police and the circumstances in which a chief officer of police and a police authority might be liable for discrimination.

3. The issue raised by this appeal is whether a Chief Constable can be made liable under the 1975 Act for sexual harassment and other acts of discrimination committed by one of his officers against another of his officers.

4. On 15 June 2001 the respondent, Angela Baskerville, presented an originating application to the Employment Tribunal, complaining against the appellant, the Chief Constable of Kent County Constabulary, of sexual discrimination against her. The appellant applied to strike out the originating application. The Tribunal at Ashford in Kent, consisting of the Chairman, Mrs Valerie Cooney, sitting alone, refused that application. The appellant appealed to the Employment Appeal Tribunal ("the EAT"), but the appeal was rejected by His Honour Judge McMullen QC, sitting alone. The appeal by the appellant to this court is brought with the permission of Mummery LJ.

5. In her originating application the respondent alleged that when employed as a detective constable at Margate Police Station she was subjected to persistent, unwarranted and unwanted behaviour and remarks from her male colleagues and supervisors of a sexual nature, as a direct result of which she had been off work and suffering from post-traumatic stress disorder. The appellant resisted the complaint on the ground that it was out of time and that the claim was not particularised. In further and better particulars running to 136 paragraphs the respondent spelt out the details of her complaint.

6. The account of the facts taken from the respondent's pleadings and summarised by the EAT is accepted by the appellant as an accurate account for the purposes of this appeal:

"10. ... the Kent constabulary has 3,500 police officers and 1,500 civilian employees. The respondent, who is 30, was engaged as a Police Constable at Kent Constabulary on 6 December 1993. She is now a Detective Constable ...

11. The [respondent] went on maternity leave in late 1997. When she returned she contends a series of events began which are, each or together, acts of sex discrimination, including allocation of the [respondent] to particular work, to courses, failing to handle complaints she made, comments on her status, the language and tone of senior officers, sexually offensive comments and a range of other matters in respect of her fellow officers and her supervisors. She was promoted to Detective Constable. She went sick and was prescribed anti-depressants and was eventually admitted to hospital with a suspected stroke. She attributes her condition to the treatment she received."

7. It was not originally alleged that the appellant personally committed any act of discrimination. However, in the respondent's amended further and better particulars, what were called the legal pleadings were added with the permission of the EAT. It was said in paragraph 1 of the legal pleadings that the respondent believed that the appellant had treated her less favourably than a male officer in the same or similar circumstances, on the grounds of her sex, and in particular with regard to each of the incidents as particularised in the specified paragraphs amounting to about 100 paragraphs. It was further averred in paragraph 4 that the police officers, to whom she referred in those particulars, were at all material times under the direction and control of the appellant, alternatively were acting as his agents and with his express or implied authority. It was also averred in paragraph 8 that specified senior officers acted with the authority of the appellant in dealing with, or failing to deal with, specified complaints of the respondent. It was said that they were acting with the authority of the appellant in carrying out his managerial responsibilities in respect of the respondent. It was also alleged further or alternatively in paragraph 6 that the actions of the police officers were sufficiently within the control of the appellant that he could have prevented them or reduced their extent, but that he failed to do so and that thereby the appellant subjected the respondent to sexual harassment and discrimination. This further or alternative allegation was advanced in reliance on the decision of the EAT in Burton v De Vere Hotels Ltd [1997] ICR 1.

8. On this appeal, as in the tribunals below, the factual allegations of the respondent must, of course, be taken to be true.

9. The appellant applied, pursuant to Rule 15(2)(c) of the Rules contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, to the Tribunal to strike out the respondent's claims as misconceived on the basis of the decision of this court on 24 May 2002 in Chief Constable of Bedfordshire Police v Liversidge [2002] ICR 1135. In that case it was held that the Chief Constable was not liable under the 1976 Act in respect of racial abuse said to be acts of racial discrimination by one of his officers against another officer.

10. In the present case the Tribunal Chairman refused to strike out on the basis that the complaint was not misconceived at the time the originating application was presented. On the appellant's appeal to the EAT it was conceded that that reasoning could not stand. However the EAT dismissed the appeal on the grounds that the claim based on the Burton decision was sufficiently arguable to justify permitting an amendment to the respondent's claims, that Liversidge could be distinguished, as it did not relate to the 1975 Act which fell to be interpreted in accordance with the Council Directive 76/207/EEC ("the Equal Treatment Directive"), that giving a purposive construction to sections 17 and 41(2) of the 1975 Act the appellant might be held liable for acts done by his officers against another officer, and that the claims should not be struck out without a hearing to find the facts.

Sex Discrimination Act 1975

11. The relevant provisions of the 1975 Act are as follows.

12. Part I contains definitions of some of the key terms of the 1975 Act. Thus section 1(1) defines what is discrimination by one person against another in any circumstances relevant for the purposes of any provision of the 1975 Act.

13. Part II relates to discrimination in the field of employment. The term "employment" is given an extended meaning by section 78(1), but it is accepted that it is not wide enough to cover the relationship between a Chief Constable and his police officers. Within Part II is section 6 which makes unlawful certain acts of discrimination. By subsection (2):

"It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -

(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

(b) by dismissing her, or subjecting her to any other detriment."

14. Part II also contains a group of sections,sections 17 to 21, headed "Special Cases". Included as a special case are the police. Section 17(1) provides:

"For the purposes of this Part, the holding of the office of constable shall be treated as employment -

(a) by the chief officer of police as respects any act done by him in relation to a constable or that office;

(b) by the police authority as respects any act done by them in relation to a constable or that office."

Subsection (7) defines "chief officer of police" and "police authority":

"'chief officer of police'-

(a) in relation to a person appointed, or an appointment falling to be made, under a specified Act, has the same meaning as in the Police Act 1996;

(b) in relation to any other person or appointment means the officer who has the direction and control of the body of constables or cadets in question;

'police authority'-

(a) in relation to a person appointed, or an appointment falling to be made, under a specified Act, has the same meaning as in the Police Act 1996;

(b) in relation to any other person or appointment, means the authority by whom the person in question is or on appointment would be paid."

The term "specified Act" includes, so far as relevant, the Police Act 1996 ("the 1996 Act").

15. The 1996 Act provides for the division of England and Wales into police areas, such as Kent, and for the maintenance of a police force for every police area outside London. The term "chief officer of police" means, in relation to a police force so maintained, the Chief Constable; and the term "police authority" means the police authority which is established for every such police area. By section 10(1) a police force so maintained is under the direction and control of the Chief Constable. The police authority appoints the Chief Constable, Deputy Chief Constable or Assistant Chief Constable of their police area. The chief constable makes appointments to any rank below that of Assistant Chief Constable. The police authority, by section 15 of that Act, may employ persons to assist the police force.

16. To revert to the 1975 Act, Part III relates to discrimination in fields other than employment.

17. Part IV is headed "Other unlawful acts". Section 41 imposes liability on employers and principals in this form:

"(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent on subsequent) of that other person shall be treated for the purposes of this Act as done by that other person as well as by him.

(3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."

18. Section 42 (also in Part IV) makes an aider or abetter of an unlawful act of discrimination the doer of an unlawful act of the like description.

19. Part VII contains provisions for the enforcement of the 1975 Act. Section 62(1) provides that except as provided by the 1975 Act no proceedings are to lie against any person in respect of an act by reason that the act is unlawful by virtue of a provision of that Act. By section 63(1):

"A complaint by any person ("the complainant") that another person ...

(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part II, or

(b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the complainant,

may be presented to an industrial tribunal."

20. In Part VIII, containing supplemental provisions, section 85 provides for the application of the 1975 Act to the Crown including to acts done on behalf of the Crown by a statutory body or a person holding a statutory office. However, it is unnecessary to say more about the section as no reliance is placed on it by either side.

21. Provisions in virtually identical form to those in the 1975 Act are to be found in the 1976 Act and some of the general provisions are repeated in the Disability Discrimination Act 1995.

22. Subsequent legislation has altered the provisions governing the applicability of the 1976 Act and the 1975 Act respectively to the police. As this cannot affect the construction of the 1975 Act, it is sufficient to note that (1) by section 76A(3) Race Relations (Amendment) Act 2000, for the purposes of section 32 of the 1976 Act (which is in the same terms as section 41 of the 1975 Act) (a) the holding of the office of constable as a member of a police force is to be treated as employment by the chief officer of police; and (b) anything done by a person holding such an office in the performance, or purported performance, of his function is to be treated as done in the course of that employment, and (2) paragraph 2(3) of the Sex Discrimination Act 1975 (Amendment) Regulations 2003 (SI 2003 No.1657), which came into force on 19 July 2003, has amended section 41 of the 1975 Act in a similar way. However, we are told that there are 60 outstanding cases which, like the present case, fall to be determined under the legislation prior to those alterations.

The Equal Treatment Directive

23. Reliance is placed by the respondent on the Equal Treatment Directive, but only as an aid to the construction of the 1975 Act which, it is common ground, must be read so far as possible to be in conformity with that Directive. Equal treatment for male and female workers has long been regarded as one of the objectives of the European Union. As was stated in Article 1(1) of the Equal Treatment Directive, included in the purpose of the Directive was to put into effect in the Member States the principle of equal treatment for men and women as regards access to employment, including promotion, and to vocational training as regards work conditions. By Article 2(1) the principle of equal treatment meant that there should be no discrimination whatsoever on grounds of sex either directly or indirectly. Article 3(1) provided that there should be no discrimination whatsoever on grounds of sex in the conditions for access to all jobs or posts. Article 4 applied the principle of equal treatment with regard to access to vocational guidance and training. Article 5(1) provided that application of the principle of equal treatment with regard to working conditions meant that men and women should be guaranteed the same conditions without discrimination on grounds of sex. Article 6 required Member States to introduce into their national legal systems such measures as were necessary to enable all persons, who considered themselves wronged by failure to apply to them the principle of equal treatment within the meaning of Articles 3,4 and 5, to pursue their claims by judicial process.

24. Although the 1975 Act preceded the Equal Treatment Directive, no amendments were made to the 1975 Act consequent on the making of that Directive.

25. For completeness I should note that a further Directive 2003/73 of the European Parliament and Council makes substantial amendments to the Equal Treatment Directive, including an amendment to Article 2 which introduces provisions relating to discrimination on the grounds of sex, and thereby prohibits sexual harassment. Member States are required to implement the Directive by 5 October 2005.

The appeal

26. Mr John Cavanagh QC for the appellant submits that the EAT was wrong to conclude that the originating application should not be struck out. On that part of the decision of the EAT, which was based on Burton , Mr Cavanagh submits that the Burton decision has now been overruled by the House of Lords in Macdonald v Advocate General for Scotland [2003] UKHL 34. As the respondent does not seek to support that part of the EAT's reasons I need say no more on that point.

27. Mr Cavanagh's first submission, which he characterised as his bold submission, is that section 17(1) should be construed literally, so that only acts done by a chief officer of police are encompassed by the subsection. He stresses that section 17(1) is expressed to apply only for the purposes of Part II with the consequence that section 41(2) lies outside those purposes. He also contends that the EAT erred in holding that section 41(2) of the 1975 Act created the relationship of principal and agent as between the Chief Constable and a junior officer. He relied in his skeleton argument on the decision of this court in Farah v Metropolitan Police Commissioner [1998] QB 65 for the proposition that there is no agency relationship between a chief officer of police and his subordinate officers, although he conceded in oral argument that that decision was more limited, as I will shortly explain.

28. If wrong on his bold submission, Mr Cavanagh advanced what he said was his less bold argument that section 41(2) in relation to the police only applies to acts done by subordinate officers in the performance of specific statutory powers or functions which are expressly conferred by statute on the Chief Constable and which the Chief Constable could delegate to his officers. He criticises the EAT for treating as acts which might come within section 41(2) what the EAT described as "management decisions, such as recruitment and posting, made as part of the direction and control of the police force vested in the Chief Constable, but in fact carried out under his authority by other officers at the appropriate level in the chain of command."

29. On the question whether the Tribunal and the EAT were right to hold that there should be no strike-out without a hearing, Mr Cavanagh says that if it is apparent from the complainant's pleaded case that the Tribunal has no jurisdiction to hear it, it cannot be right that the Tribunal should nevertheless go on to hear it merely because a discrimination complaint is involved. He submits that the present case is a suitable one for the issue of jurisdiction to be determined as a preliminary issue.

30. Mr Robin Allen QC for the respondent submits that the approach taken by the EAT as to sections 17 and 41(2) of the 1975 Act in the light of the Equal Treatment Directive is the correct one. Alternatively, he contends that the decision of this court in Liversidge cannot stand in the light of the approach taken by the House of Lords in Relaxion Group v Rhys-Harper [2003] UKHL 33.

31. Mr Allen further argued that in any event discrimination complaints should be not struck out without investigation of the facts, and that having regard to the nature of many of the acts of the police officers in respect of which complaint is made by the respondent and to the pleaded allegation that such acts were done as agents of and with the authority of the appellant, there must be a trial to determine the facts.

Section 41(2)

32. I start with section 41(2). This is a provision extending to the categories of unlawful acts any acts done by an agent for his principal with the authority of his principal, the mechanism adopted by the 1975 Act being to deem the agent's acts in those circumstances to be acts done by the principal as well. The EAT was wrong, with respect, in saying (in paragraph 29 of the judgment) that "section 41(2) created the relationship of agent and principal between the Chief Constable and his junior officers". Section 41(2) creates no such relationship but prescribes the consequences for the principal of authorised acts done by an agent for his principal.

33. The applicability of 41(2) to section 17(1) is asserted by Mr Allen but denied by Mr Cavanagh. Mr Allen rightly drew attention to the width of the language in section 41(2), referring as it does to "anything done" with the principal's authority "whether expressed or implied", and where the subsection is satisfied the deeming provision is expressed to apply "for the purposes of this Act". It is therefore a general provision applicable to other parts of the 1975 Act including Part II. Without section 41(2) the words of section 17(1) "any act done by him", would, on the general principle that a principal acting through an agent himself does the act of the agent, include any act done by the principal through his agent. By reason of the specific provisions of section 41(2) that general principle is displaced. I cannot see how section 17(1) can both exclude acts done by a principal through an agent and not be subject to the provisions of section 41(2). Those provisions require the principal to be treated as also having done that which the agent did with the principal's authority. If the relevant act is done by a police officer as agent of the Chief Constable with his authority, section 17(1) has to be read as applying to that act as done by the Chief Constable also. The result is that in relation to that act the Chief Constable is to be treated as the employer of the complaining constable by section 17(1), and, if what was done amounted to discrimination against the constable by falling within section 6(2)(a) or (b), then that was unlawful conduct by the Chief Constable, and that would entitle the complaining constable pursuant to section 63(1) to present a complaint to the Tribunal. I reach that conclusion on the plain language of the 1975 Act without recourse to the Equal Treatment Directive, though that conclusion is not inconsistent with anything in the Directive.

34. I do not think that there is any authority that supports a contrary view. In Liversidge no comparable argument based on section 41(2) was advanced to this court. When that case was before the EAT it was not suggested that the activities of the officers against whom complaints were made could amount to acts of agents of the Chief Constable with his authority (see [2002] IRLR 15, page 18, paragraph 3). The arguments advanced in this court on behalf of the complaining constable in that case was that section 16(1) of the 1976 Act (the equivalent of section 17(1) of the 1975 Act) was ambiguous and that section 75(1) of the 1976 Act (the equivalent of the section 85(1) of the 1975 Act) applied to her. Neither argument succeeded.

35. Further in Liversidge at page 1147, paragraph 49, I expressed the opinion obiter that a Chief Constable would be able to delegate some of his functions, and added "but he may himself be liable under section 41(2) of the 1975 Act as principal."

36. In Chief Constable of Cumberland v McGlennon [2002] ICR 1156, in a case where a male police constable complained of sex discrimination in respect of a posting the EAT (Mr Commissioner Howell QC presiding) held that the words "any act done by him" in section 17(1)(a) included management decisions on such matters as recruitment and posting as part of the direction and control of the police force by the Chief Constable under section 10 of the 1996 Act, but in fact taken and carried out under his authority by other officers at the appropriate level in the chain of command. In reaching that conclusion the EAT referred to 41(2) (see page 1168, paragraph 38). Mr Cavanagh challenged that decision as wrongly decided. In my judgment in so far as the decision was based on section 41(2) applying to section 17(1) in respect of authorised acts carried out by officers as agents of the Chief Constable, that decision was rightly decided.

37. Mr Cavanagh relied on the decision in Farah as precluding a relationship of agency between a Chief Constable and his police officers. In Farah a member of the public brought proceedings against the Metropolitan Police Commissioner (the equivalent of a Chief Constable for the purposes of the 1975 Act) claiming that the conduct of his officers amounted to unlawful racial discrimination contrary to section 20(1) of the 1976 Act. The claimant argued that the relationship between a constable and his chief officer of police was that of agent and principal. But the decision of this court that that was not the relationship was confined to the relationship between a chief officer of police and a constable acting as a peace officer, as Mr Allen pointed out. Griffith CJ in the High Court of Australia in Enever v The King (1906) 3 CLR 969 at 977 said:

"A constable, therefore, when acting as a peace officer, is not exercising a delegated authority, but an original authority, and the general law of agency has no application."

That statement was cited with approval in Farah by Hutchison LJ and by Otton LJ at pages 82 and 85 respectively. In my judgment, therefore, Farah does not preclude an agency arising in circumstances in which the complaints made against the Chief Constable do not relate to the conduct of his officers as peace officers. I therefore reject the submission that no acts can be done by a police officer as agent for his Chief Constable for the purposes of section 41(2).

38. I turn to the alternative submission that if section 41(2) does apply to section 17(1), the chief officer of police can only be liable for acts specifically required by statute to be done by him and which are done by his subordinates as his agents and with his authority. Mr Cavanagh criticises the EAT in McGlennon for drawing the line at managerial decisions in discharge of the Chief Constable's functions under section 10 of the 1996 Act, and he likewise criticises the EAT in the present case for following that approach.

39. He acknowledges that not everything done pursuant to the direction and control of a police force by the Chief Constable can be done personally by the Chief Constable. We have been taken to a number of authorities such as Reg v Chief Constable of Greater Manchester, Ex p Lainton [2000] ICR 1332 which make clear that there are many powers conferred on designated persons by Statute which can be delegated even without specific provision for delegation if such delegation can be inferred to have been within the intention of Parliament. In the case of a Chief Constable, reason requires that many functions are capable of delegation to subordinates. In the Lainton case Laws LJ, with whom Brooke and Mantell LJJ agreed, approved as accurate the statement in de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th Edition (1995), page 1332:

"Where the exercise of a discretionary power is entrusted to a named officer - eg a chief officer of police, a medical officer of health or an inspector - another officer cannot exercise his powers in his stead unless express statutory provision has been made for the appointment of a deputy or unless in the circumstances the administrative convenience of allowing a deputy or other subordinate to act as an authorised agent very clearly outweighs the desirability of maintaining the principle that the officer designated by statute should act personally."

Parliament must have contemplated that functions fully within the direction and the control of so large and complex a body as a modern police force must be capable of delegation by the Chief Constable to his subordinates.

40. The statement in the McGlennon decision relating to the scope of the permissible delegation by the Chief Constable of his functions under section 10 of the 1996 Act as extending to management decisions on recruitment and posting was of course made in the context of the specific facts of that case. It is for the tribunal of fact in each case to determine whether the subject of complaint was the act of a police officer as agent for the Chief Constable and with his authority.

41. I have already set out the EAT's summary of the facts of the present case and of the particulars of the complaints which are made by the respondent. In my judgment it is not possible for this court to say whether the acts complained of fall outside the scope of section 41(2). That is for the Tribunal to determine after finding the facts. I do not see that we are in a position to say, as we must if we are to allow the appeal, that section 41(2) cannot apply to any of the complaints made by the respondent. Although we are asked by Mr Cavanagh to give guidance to the Tribunal, I fear that I can do no more than draw attention, first, to the language of section 41(2) requiring, as it does, acts by an agent with the authority of the principal, second, to the exclusion, because of the decision in Farah , of the acts of police officers when acting as officers of the peace, and, third, to the very proper concession made by the respondent in the present case that the mere use of abusive language by one officer to another of equal rank will not suffice.

42. The conclusion which I have reached, if my Lords agree with it, is sufficient to dispose of this appeal. In that event it will be unnecessary to consider the arguments based on the Equal Treatment Directive which Mr Allen wishes to advance, or Mr Allen's alternative argument that Liversidge was wrongly decided.

43. For these reasons I would dismiss the appeal.

44. LORD JUSTICE KAY: I agree.

45. THE VICE-CHANCELLOR: I too agree.

(Appeal dismissed; Respondents do pay the Appellant's costs of the appeal; application for permission to appeal to the House of Lords refused; matter to be remitted to the Employment Tribunal).