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:

“It is, however directed, that the proceedings before the Police Disciplinary Board and the decision of that Board cannot form the basis of that claim, those proceedings and that decision being immune from suit, but that the dismissal claim be restricted to the actions of the Chief Constable in reviewing and confirming the decision to dismiss.”

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:

“(a)

That on the 13 December 2001 you became aware that Sergeant Haggart and Police Constable Ronald had committed an unlawful act, namely not dealing with human remains properly. You failed in your duties as a police officer to report the matter for immediate investigation, contrary to British Transport Police Conduct Regulations, 1999, Regulation 4.1, Schedule 1, Code of Conduct, Clause 6.

(b)

That on the 13 December 2001 in Newcastle you seized a video tape from the railway close circuit television system and failed to deal with it in accordance with Force Standing Orders, contrary to the British Transport Police Conduct Regulations 1999, Regulation 4.1 Schedule 1, Code of Conduct Clause 6.

(c)

That on the 16 January 2002 you incited Police Constable Burns to make a false statement alleging that Sergeant Haggart used excessive force against a member of the public, contrary to the British Transport Police Conduct Regulations 1999, Regulation 4.1, Schedule 1, Code of Conduct Clause 1.”

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:

“… the claimant was dismissed by the Police Disciplinary Board and that following the decision of the Court of Appeal in Heath that board was fulfilling a quasi-judicial function and, as a consequence, its proceedings and its decision are immune from suit.”

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:

“ 16. I can think of nothing which is more likely to be seen as an attack on the integrity of the judicial process and hence the public interest than permitting a situation where members of the Police Disciplinary Board, in the pursuit of a quasi judicial function, can be required to attend at the Tribunal and be answerable not only for their conduct, but more significantly for the decision that they have arrived at. It is, to me inconceivable that a judge can behave entirely unreasonably during the course of proceedings and is protected from civil proceedings, but that the decision that he reaches at the conclusion of the proceedings can be so attacked. That cannot, in my view, be right.

17.

Accordingly, I conclude that the claimant cannot be permitted to attack the Police Disciplinary Board in relation either to their proceedings or in relation to their decision. I acknowledge the force of Mr Davies’s argument that if, in reality, a decision to dismiss a police officer will always be made by a Police Disciplinary Board, by providing that board with immunity from suit in this way the rights provided by s43A are significantly eroded. I can, however, see no way that I could conclude that I was not bound by the clearest of decisions of the Court of Appeal.

18.

That does not, however, mean that the claimant is of necessity prevented from pursuing this dismissal claim. As I have described the decision of the Police Disciplinary Board was the subject of an appeal to the Chief Constable. The Chief Constable could have reversed the decision in which event there would have been no dismissal. The Chief Constable in exercising that function can clearly not bring himself within the Trapp guidelines. Thus, if the claimant can demonstrate that the Chief Constable’s decision was made by reason of the fact that he had made a protected disclosure, the dismissal claim may still be able to succeed. Thus, whilst I do not strike out the dismissal claim, I do restrict the basis upon which it can be advanced.”

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:

“[The] immunity … extends to anything said or done by [all witnesses] in the ordinary course of any proceedings in a court of justice. The same immunity is given to the parties, their advocates, jurors and the judge. They are all immune from any action that may be brought against them on the ground that things said or done by them in the ordinary course of the proceedings were said or done falsely or maliciously and without reasonable cause.”

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):

“If the decision itself were excluded from the immunity, the integrity of the proceedings would not be protected and collateral attacks could be made against decisions of judicial and quasi-judicial bodies. The avoidance of such collateral attacks was fundamental to the immunity rule.”

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

“I have no doubt that the scope of immunity from suit afforded to judicial and quasi-judicial bodies extends to their decisions. If this were not so the result would be absurd and there would be no end to collateral challenges to their decisions.”

The judge added, at paragraph 46:

“I am unable to see how one can sensibly limit immunity to procedural matters and not hold that the immunity covers the decision itself, especially as the decision is protected as much as the procedure by immunity from suit”.

Reference was made to other remedies available to the appellant.

In the summary of his judgment, the judge stated:

“… The respondent argued that the proceedings sought to impugn the decision of the Police Complaints Board which was on the authority of Heath a quasi-judicial body whose decisions were immune from suit. The EAT held that the proceedings of the Police Complaints Board, including its decision, were immune from suit because it was quasi-judicial body and that the enactment of S37(1) of the Police Reform Act 2002 did not affect this immunity in the case of an alleged ‘whistleblower’.”

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:

“A worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure”.

The section does not apply where the detriment in question amounts to dismissal (Section 47B(2)). A complaint under the section may be presented to an employment tribunal (Section 48(1).

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

“An employee who is dismissed shall be regarded for the purposes of this Part [which includes section 94(1)]as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

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:

“It is, however, directed that the proceedings before the Police Disciplinary Board and the decision of the Board cannot form the basis of that claim [the Section 103A claim], those proceedings and that decision being immune from suit.”

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: -

“During the course of the hearing of this appeal, however, it became increasingly evident to the court that it was neither necessary nor even desirable to resolve the Community law and Article 6 issues in advance of the substantive hearing in the employment tribunal, at which it ought to become clearer than it is now how much relevant evidence can be given to the tribunal by each side and without risk of the respondents breaching possible legal restrictions on disclosure of security vetting procedures and information.”

And at paragraphs 17 and 18, he added: -

“17.

The issue of non-disclosure of vetting information by the police was treated as giving rise to large questions of law, which should be decided by the tribunal before the parties obtained and served any evidence. There are no witness statements or disclosure of documents from either side. Instead of proceeding to a substantive hearing of the evidence the case took off into the realms of EC law, the European Convention of Human Rights, the Human Rights Act 1998 and the Regulation of Investigatory Powers Act 2000 (RIPA).The result is that, as the Master of the Rolls observed during the oral hearing, the legal arguments paraded before this court are almost totally devoid of any of the factual content on which the outcomes of race discrimination claims normally turn. His observation is similar to those of Lord Phillips of Worth Matravers in R (Burke) v GMC (Official Solicitor and others intervening)[2005] EWCA Civ 1003, [2006] QB 273 at 293, paragraph 21, that there are great dangers in grappling with general issues divorced from a factual content that requires their determination –”

'... The danger is that the court will enunciate propositions of principle without full appreciation of the implications that these will have in practice, throwing into confusion those who feel obliged to attempt to apply those principles in practice.'

18.

This sort of thing tends to happen when, through the fault of nobody in particular, novel legal points take on a rarefied life of their own and become a distracting diversion from the concrete facts of the case. In my judgment, the employment tribunal should have temporarily parked the point on the non-disclosability of vetting details without ruling on the issues of EC and ECHR law. It should have insisted on evidence and disclosure by both sides in order to see how much evidence could in fact be given by the police, as well as by Ms Barracks, about the circumstances in which the job application was rejected.

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.