Lake v British Transport Police

This is an appeal by Mr Thomas Lake against a judgment of the Employment Appeal Tribunal, His Honour Judge Serota QC sitting alone, delivered on 8 September 2006. The EAT dismissed an appeal by Mr Lake against a decision of an employment tribunal held at Newcastle-upon-Tyne dated 16 January 2006. The appellant’s claim to the employment tribunal was, first, that he had been subjected to a detriment and, secondly, that he had been unfairly dismissed. The dismissal was unfair because the reason, or the principal reason, for it was that he had made a protected disclosure within the meaning of the 1996 Act. As it is often put, he had been a whistleblower.

At a pre-hearing review, while the tribunal refused an application to strike out the appellant’s claim which was made under Section 103A of the Employment Rights Act 1996 (“the 1996 Act”) on the ground that the tribunal did not have jurisdiction to hear the claim, held:

The appellant was a constable in the British Transport Police (“the respondents”). On 11 February 1997, he attended a fatality with other members of the force, Sergeant Haggart and PC Tina Ronald. The appellant alleges that Sergeant Haggart found a piece of skull at the scene and retained it as a trophy which he subsequently gave to PC Ronald. On 13 December 2001, PC Ronald told him what had occurred and attempted to give him a piece of the skull. He retained a CCTV tape of the conversation with PC Ronald but did not report the matter to his superiors.

On 5 June 2002, the appellant informed his Federation representative that he was being bullied by Sergeant Haggart. He told the representative what had happened on 11 February 1997. That disclosure led to the arrest and suspension of both Sergeant Haggart and PC Ronald. Following enquiries, a decision was taken not to prosecute them. They made complaints about their arrest, detention and suspension.

Following further investigation, the Crown Prosecution Service decided to take no action against the appellant. Notices were, however, served upon him under the British Transport Police (Conduct) Regulations 1999 (since replaced with no material change by 2004 Regulations). The charges covered a range of conduct. They included charges that the appellant failed to act when he became aware of the unlawful act of his colleagues in December 2001, that he had wrongfully retained the CCTV tape, that he had made false allegations against Sergeant Haggart, and that he had incited another officer to make a false statement alleging unlawful conduct by Sergeant Haggart.

In April 2005, the charges were heard at a disciplinary hearing before the Police Disciplinary Board. The Board found the appellant guilty of a total of five charges and directed that he be dismissed from the force. That was a sanction the panel conducting the hearing was entitled to impose (Regulation 35 of 2004 Regulations). The appellant exercised his right (Regulation 40) to request the Chief Officer of the Force to review the finding and the sanction imposed. On 30 June 2005, the Chief Constable allowed the appeal on one charge but dismissed it on the remainder and upheld the sanction of dismissal. On 22 July 2005, the appellant submitted his claim to the employment tribunal.

There was a further appeal. That was from the decision of the Chief Constable to the Police Appeal Tribunal, under Section 85 of the Police Act 1996. In a determination dated 17 May 2006, that is after the decision of the employment tribunal, that Tribunal allowed the appeal against the finding of guilt on one charge but dismissed the appeal in relation to three other charges. The appeal against the sanction of dismissal failed.

The surviving charges proved were:

The claim to the employment tribunal was on the ground that the appellant had been subjected to a detriment, the laying of charges against him, by reason of having made a protected disclosure (Section 47B of the 1996 Act) and that he had been unfairly dismissed because the reason for his dismissal was that the he had made such a disclosure (Section 103A of the 1996 Act). The respondents denied that the disclosure made had been a protected disclosure and further denied that the charges against the appellant were laid because he had made such a disclosure. However, their primary case was that he was “prohibited from bringing such a claim”.

It was conceded by the respondents before the employment tribunal (paragraph 7 of written reasons), that “the detriment claim relating to the bringing of charges can be allowed to proceed to a full hearing.” However, they argued:

Relying on the decision of this court in Heath v Commissioner of Police for the Metropolis [2005] ICR 329, and that of the House of Lords in Darker v Chief Constable of the West Midlands[2001] 1 AC 435, the tribunal accepted that submission:

That reasoning led to the employment tribunal’s conclusion that “the decision of the Board cannot form the basis” of a Section 103A claim. (Trapp v Mackie[1979] 1 WLR 377 was concerned with the type of tribunal before which witnesses had the protection of absolute privilege.) The intention and effect of that reasoning and that order appear to me to be that decision of the Board on unfair dismissal cannot, in a protected disclosure case, be challenged at an employment tribunal.

In the Employment Appeal Tribunal, Judge Serota dismissed the appellant’s appeal against that finding. The judge considered at length the decision of this court in Heath where a civilian employee of a police force brought a complaint of sex discrimination in the employment tribunal in respect of the conduct of the hearing before a disciplinary board set up under the then applicable Police (Discipline) Regulations 1985. The claimant said that she had felt intimidated by the fact that the board was all male and that a barrister had humiliated her by asking her, without complaint from the board, to demonstrate how the underlying conduct, an alleged sexual assault by a police officer at work, had occurred. The court held that immunity from suit for anything said or done by anybody in the course of judicial proceedings was absolute. It was held that the Board was a judicial body acting judicially, a finding that is not challenged in the present case.

The nature of the immunity was described by Lord Hope of Craighead in Darker, at page 445 – 446, as cited by Neuberger LJ in Heath, paragraph 106:

Before Judge Serota, the respondents submitted, by counsel Mr Short, that the decision of the Board was itself covered by that immunity. The judge recorded his submission (paragraph 4):

Accepting that submission, Judge Serota held, at paragraph 43:

In the summary of his judgment, the judge stated:

In their written submissions to the court, the respondents sought to uphold that finding. They submitted: “There is simply no basis for excluding the decision itself from the scope of the rule”.

Section 47B(1) of the 1996 Act provides:

Section 94(1) provides that “an employee has the right not to be unfairly dismissed by his employer.” Section 103A provides:

Protected disclosures are defined in Section 43A to H of the 1996 Act and include any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show that a criminal offence has been committed. By virtue of Section 43C, a disclosure to the employer in good faith may be protected.

It is accepted on behalf of the appellant that, as a police constable, he had no relevant right of action under those sections, as enacted. Section 200 of the 1996 Act also provides that those employed under a contract of employment in police service do not have the right not to be unfairly dismissed provided by Section 94(1) of the Act.

However, by Section 37(1) of the Police Reform Act 2002, a new Section 43KA was included in the 1996 Act. It extended to persons who hold the office of constable, otherwise then under a contract of employment, the protection in Section 47B, 48 and 103A of the 1996 Act. It provides that the constable shall be treated as an employee employed by the chief officer of police under a contract of employment.

The respondents strongly contest that any disclosure by the appellant was protected within the meaning of the Statute. However, the disclosure in 2002 of the alleged behaviour of Sergeant Haggart was capable of being a protected disclosure and, for the purposes of the present jurisdictional issue, must be assumed to be protected. The appellant’s case is that the reason, or the principal reason, for the disciplinary proceedings taken against him, and for his dismissal, was that he had made a protected disclosure and that the dismissal was, by virtue of Section 103A, unfair. It is also submitted that the service on the appellant of the conduct charges itself amounts to a “detriment” within the meaning of Section of 47B(1). As the judgment of Judge Serota records (paragraph 36), the appellant does not accept the facts found by the Police Disciplinary Board and wishes to re-open them before the employment tribunal.

It was not immediately apparent what the appellant had to gain from an appeal when it had been conceded that the detriment claim relating to the bringing of charges could proceed to a full hearing as could the challenge to the actions of the Chief Constable in confirming the decision to dismiss. That would appear to allow a consideration by the employment tribunal of the underlying facts. I accept, however, that the appellant was left in doubt (as a tribunal conducting the full hearing would probably also have been in doubt) about the effect of the employment tribunal’s ruling on jurisdiction, particularly when it included a finding that the decision of the Police Disciplinary Board could not be attacked. The appellant acted reasonably in pursuing the appeal and the reasonableness of that conduct is confirmed by the respondents’ persistence, in submissions to the Employment Appeal Tribunal, and in written submissions to this court, that immunity attaches to the decision of the Board.

It is not suggested that the further appeal to the Police Appeals Tribunal, after the employment tribunal decision, affects the issue. Such immunity as attached to the Board would also attach to the Police Appeals Tribunal.

In oral submissions, Mr Lissack QC, for the respondents, maintains the submission that the decision of the Board cannot be “impeached” at the employment tribunal. The customary immunity which judges, advocates and witnesses enjoy, as confirmed in Heath, is not challenged in the appeal, so that “impeachment” in that sense does not arise. What the appellant seeks to do is to put to the employment tribunal the case which he had unsuccessfully put to the Board. Mr Lissack does not suggest that the availability of the statutory appeals procedure in itself excludes the jurisdiction of the employment tribunal.

Mr Lissack also rightly accepts that the appellant is able to place evidence before the employment tribunal to support a case that Section 103A applies. It is not now suggested that the employment tribunal is bound by the decision of the Board, or that of the Police Appeals Tribunal. That is not now claimed to be the effect of Heath. The respondents’ case is left without substance and the relevant decisions of the Employment Appeal Tribunal and the employment tribunal cannot stand.

I would allow the appeal and strike out the words in paragraph 2 of the employment tribunal’s order following the pre-hearing review:

If that paragraph does mean that the employment tribunal could not in law reach a decision different from that reached by the Board, or that it could not consider evidence contrary to that decision, it was wrong. Of course, if an attempt were to be made to call as a witness the Chairman of the panel constituting the Board to justify or explain his decision, or to impugn remarks he made in the course of proceedings, the Chairman would be protected by the immunity for his actions which has long been established. This is not a case in which the manner in which the Board has conducted proceedings has been challenged as biased or unfair or in itself giving rise to a claim. The challenge is that they reached the wrong decision and that the employment tribunal has jurisdiction to hear and consider evidence and to make its own decision as to whether a Section 103A case has been established. In my view, it has that jurisdiction. The appellant must of course show, in accordance with Section 103A, that the making of a protected disclosure was at least the principal reason for the detriment and the dismissal.

It may be unusual that a statutory appeals procedure, which has sole jurisdiction (subject to judicial review) in most cases where disciplinary action is taken against police officers, can, in a Section 47B(1) / Section 103A case be followed by a claim to an employment tribunal but that, in my judgment, is the effect of the insertion of Section 43KA into the 1996 Act. The right is conferred by statute and notions of judicial immunity do not defeat it. The court is concerned with an issue of jurisdiction and I express no views upon the merits of the appellant’s claim.

To the extent indicated, I would allow this appeal. The case will be remitted to the employment tribunal to consider the merits of the claim. I agree with counsel that directions as to how, on the basis of the decision of this court, the hearing before the employment tribunal should be conducted, are for the employment tribunal to consider at a directions hearing.

I have had the advantage of reading Lord Justice Pill’s judgment in draft. I am in complete agreement with it. Like him, I would allow the appeal and remit the claim to the Employment Tribunal for it to give fresh case management directions (including the exchange of witness statements) and for it to conduct a hearing on the merits.

I wish to add only one point of my own. This is the second occasion in my experience in this court in which proceedings before the Employment Tribunal have been diverted from an examination on their merits into a time-consuming, expensive and ultimately sterile debate on a point of law which has no relevance to the facts.

In my judgment, practitioners in the field would be well advised to take heed of the wise words spoken by Mummery LJ giving the leading judgment in this court in Barrack v. Coles and another[2006] EWCA Civ 1041, [2007] IRLR 73. The case concerned a complaint by a black woman police officer that she had been unlawfully discriminated against by the police on the grounds of race when she was not selected for the position as a field intelligence officer in the then newly established operation Trident. Instead of a hearing taking place on the merits, the focus of the case become what Mummery LJ described as the “claimed incompatibility of legal, but so far identified and perhaps identifiable restrictions on the disclosure of vetting information”, an argument which engaged complex arguments in relation to the applicability of European Convention law relating to equal treatment and the claimant’s Article 6 ECHR rights.

At paragraph 5 of his judgment, Mummery LJ said: -

And at paragraphs 17 and 18, he added: -

In my judgment, these observations apply aptly by analogy to the instant case. We are not, of course, concerned with the merits of the appellant’s claim, and I say nothing about them; the Employment Tribunal is. In my judgment, practitioners in the field and Employment Chairmen should both be wary of allowing factual issues necessary for the proper resolution of the case to be put on one side whilst points of law which, on analysis, prove to be irrelevant are pursued.

The inevitable consequence, in my experience, is further delay and additional cost. In the instant case, the originating application is dated 17 August 2005. Pill LJ has set out the chronology of events prior to that date. The disclosure on which the appellant relies and which, he asserts, led to his dismissal, appears to have been made in 2002. In my judgment, the case could and should have been concluded in the Employment Tribunal by late 2005 or early 2006, not late 2007 or early 2008.

I agree with both judgments. Immunity from suit protects those to whom it applies from being sued or otherwise subjected to mandatory process – for example by way of a witness order. There is no question of the Board or its members being sued or so subjected in the present proceedings in the Employment Tribunal. It seems to me that, for the reasons given by Lord Justice Pill, the respondents have taken a false point and the Employment Tribunal and Employment Appeal Tribunal fell into legal error when they acceded to it.