What are the practical consequences of the removal of judicial immunity for police misconduct panels in discrimination cases? This article considers the acts that give rise to a cause of action, the common scenarios in which these could arise and the practical steps to take to address or avoid such issues.
In P v Comr of Police of the Metropolis [2017] UKSC 65, the Supreme Court held that the Chief Constable was vicariously liable for decisions of (old style) police misconduct hearing panels where they make decisions which amount to discrimination contrary to Equality Act 2010, where this transposes the causes of action stated in the Framework Directive.
As we have said previously, the effect of the decision in P is limited to those causes of action which derive from EU law. It can have no application to, for example, whistleblowing claims are purely a matter of English law, not derived from EU directives. Furthermore, it may be that a careful reading of the appropriate Directive may provide a ‘get out’ clause if the right being asserted in the employment tribunal does not derive from EU law.
Acts that may give rise to a cause of action
An officer will, therefore, be able to bring an action in the employment tribunal against their Chief Constable (or Commissioner) where the right on which he relies derives from the Framework Directive or another similarly directly effective EU legislation. As to whether an action can be brought against a new style panel itself (or its members) see our thoughts in our previous blog post here. Those rights are the right not to suffer:
- direct discrimination because of sex, race, sexual orientation, religion and belief, disability or age or less favourable treatment because of part-time or fixed-term status;
- indirect discrimination arising out of the sex, race, sexual orientation, religion and belief, disability or age of the officer concerned;
- harassment related to the sex, race, sexual orientation, religion and belief, disability or age of the officer concerned;
- victimisation for asserting one’s rights under the Equality Act 2010 or under the part-time worker or fixed term employee legislation;
- the failure to make reasonable adjustments in relation to a disabled person;
- breach of section 15 of the Equality Act 2010.
Common scenarios in which these could arise
The accusation could relate to:
- the conduct of the chair or the members during the hearing itself (in which case the allegation would most likely be one of harassment or failure to make reasonable adjustments);
- the decision to impose disciplinary action including dismissal of the officer. The officer may well allege the outcome was reached because of his protected characteristic;
- the application of a provision, criterion or practice which is indirectly discriminatory during the hearing or which resulted in the decision to dismiss or impose a sanction itself. Such claims are far rarer than direct discrimination claims but they could arise particularly where a blanket disciplinary rule is being applied to an officer. Such claims are subject to a justification defence, which would be a strong defence in the context of the police disciplinary regime including the need to maintain public confidence in the police service;
- things which have been said and done prior to the hearing itself. The officer may argue that the person who raised the complaint had a discriminatory motive for doing so or that the referral arises out of a rule that is indirectly discriminatory. The officer may also allege that the complaints amounted to victimisation, arising in retaliation for him raising complaints that others had infringed his or her rights under the Equality Act 2010. Where it is contended that the proceedings flow from an act of prior discrimination or victimisation, a panel must ensure that it has investigated that matter as fully as it can before making its decision;
- the police force or the panel’s failing to comply with its positive obligation of reasonable accommodation to disabled persons during the course of the investigation or the hearing. Employers often fail to appreciate that these obligations create positive duties on employers. It requires preferential treatment of disabled persons – so as to mitigate the disparate impact of the disability. Viewed properly, it is a form of preferential treatment to enable a more equal ‘playing field’ – to level up relative equality than to confer absolute positive advantage.
Recall that in P, the officer admitted the misconduct but argued that he had done it because of his PTSD – a disability for the purposes of the Equality Act 2010.
Conduct during the hearing
It is to be hoped that a chair (and a panel) would not act in such a way as to give rise to a complaint of harassment. Its definition is conduct which is unwanted, related to a relevant protected characteristic and which has the purpose or effect of violating the officer’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the officer.
All panel members should have up to date equal opportunities training and be aware of the sensitivities that might be felt by people with certain protected characteristics. Advocates should also be aware of such sensitivities and frame their questions accordingly. Chairs should be astute to prevent any questioning which is inappropriate in this regard.
That said, P is unlikely to require in a sea change in the way misconduct panels conduct hearings. Even before panel chairs were (or were aware that they were) covered by the Equality Act 2010, they routinely took steps that would negate most harassment complaints as a matter of good “judicial” practice, such as sitting irregular hours or offering regular breaks during evidence for officers identifying as having relevant disabilities, ill health or other constraints. A failure to do so would be a ground of appeal to the PAT in itself if it affected the officer’s ability to participate in the hearing.
The decision itself
An officer may allege that the decision to dismiss him or her or to impose other disciplinary action on him or her is less favourable treatment because of his or her protected characteristic.
In very broad and simplified terms, the respondent to an allegation of direct discrimination will have to demonstrate to an employment tribunal that the decision was made on grounds other than the protected characteristic.
A fully reasoned judgment summarising the facts, the parties’ submissions, any relevant legal principles and findings in relation to each allegation and disciplinary action, should in almost all circumstances satisfy an employment tribunal that the respondent has discharged that burden.
Provisions, criterions or practices
An important concept in discrimination law is that of the PCP: provision, criterion or practice. Defining a PCP is the starting point for claims of a failure to make reasonable adjustments and indirect discrimination. It must be something that is or could be applied to those with the protected characteristic in question and without the protected characteristic in question. Once identified, an employment tribunal will go on to decide whether the PCP puts the officer’s protected group at a disadvantage.
Potentially an officer may argue that the imposition of a particular sanction or the application of a disciplinary rule amounts to the application of a PCP which has an adverse disparate impact on officers having a certain protected characteristic.
Such claims are subject to a defence of justification (see below).
Tainted acts
An officer may argue that the allegations made against him have been made out of an ulterior motive. He may allege the person who originally raised the concerns against him or those who investigated those concerns were biased against him or her because of his or her protected characteristic.
Recent case law is helpful to disciplinary panels in this regard. A dismissing officer who is unaware of such motivation cannot be guilty of discrimination if he or she is unaware of such motivations: Reynolds v CLFIS (UK) Ltd [2015] EWCA Civ 439, [2015] IRLR 562. The knowledge of others cannot be imputed to a sole decision maker.
However, if, in the course of a hearing, an officer alleges that a complainant or an investigating officer is motivated by discrimination, the panel ought not to ignore such allegations. Otherwise, its decision might run the risk of becoming tainted. In such circumstances, a panel may be well-advised to hear oral evidence and make positive findings one way or another on the alleged discriminatory motivation for the allegation; if it cannot do so, it should state clearly why it cannot.
Disability discrimination
Section 15 of the Equality Act 2010 provides that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The threshold is extremely low: there need be some kind of connection between the unfavourable treatment and the officer’s disability. In P itself, the officer said that he committed the misconduct because he suffered from PTSD. Where there is a connection between the misconduct and the disability unfavourable treatment will almost always be made out. For this reason, the defence is important and the focus of most disability discrimination cases.
The defence, often referred to as the justification defence, applies where the panel can show its treatment of the officer (i.e. dismissal or imposing other disciplinary action) was done to achieve a legitimate aim. These are likely to be the protection of the public or other members of the police service and the maintenance of public confidence in the police. The decisions that a panel takes in pursuit of these aims must be proportionate to achieve them.
A misconduct panel must, therefore, address the issue of justification in its reasons. So, for example, if it is demonstrated that an officer’s PTSD did cause or contribute to his misconduct, dismissal will prima facie constitute unfavourable treatment. The panel would need to justify its decision, we suggest, by reference to the aims it sought to uphold. For instance, if the officer establishes that PTSD caused him or her to assault a member of the public or make sexual advances to a vulnerable witness, disciplinary action is likely to be justified because of the need to protect the public and maintain public confidence in the police service notwithstanding the reason for the officer’s behaviour.
To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and a reasonably necessary means of doing so. It is important for panels to be clear about the three elements of the test. “Appropriate”, “necessary” and “proportionate” are not interchangeable: see Homer v Chief Constable of West Yorkshire [2012] UKSC 15, [2012] ICR 704. As recommended by the College of Policing’s sanctions guidance, misconduct panels should in any event start with the least severe disciplinary action and work up towards the most severe only after deciding that less severe action is insufficient in the circumstances.
Any failure to comply with a reasonable adjustment duty is considered as part of the balancing exercise in considering questions of justification: see Dominique v Toll Global Forwarding Ltd EAT 0308/13:
“…where there is a link between the reasonable adjustments said to be required and the disadvantages or detriments being considered in the context of indirect discrimination and disability-related discrimination, it is important to ensure that any failure to comply with a reasonable adjustment duty is considered as part of the balancing exercise in considering questions of justification. This is because it is difficult to see as a matter of practice how a disadvantage that could have been addressed or prevented by a reasonable adjustment that has not been made can, as a matter of practical reality, be justified.”
What constitutes knowledge of disability
If the officer never raises the fact he has a disability, there is a ‘lack of knowledge’ defence. There can be no unfavourable treatment where the panel can show that it did not know, and could not reasonably have been expected to know, that the officer had the disability. If the appropriate authority could be reasonably be expected to know, then the panel will be fixed with constructive knowledge. It would be sensible for the question of relevant disabilities to be posed on or at the time of service of both the regulations 15 and 21 so that the investigator and the panel can make appropriate adjustments and issues of knowledge do not have to be litigated after the fact.
The obligation to make reasonable adjustments
Misconduct panels should be particularly astute to their own duty and the duty of the Force to make reasonable adjustments in relation to a disabled officer.
The duty arises where a requirement, where a provision, criterion or practice (or a physical feature) puts a disabled officer at a substantial disadvantage in comparison with officers who are not disabled. Where the duty does arise, the panel will be under an obligation to take such steps as it is reasonable to have to take to avoid the disadvantage.
At the most basic level, an officer may require reasonable adjustments in order to be able to participate in the hearing itself. These should be provided with the assistance and input of Occupational Health where necessary. An officer with dyslexia, for instance, may require papers to be produced with large text and/or on coloured paper. An officer with PTSD or depression may require more regular breaks or the option (already afforded by regulation 28(2)) of attending by video-link.
The same point on knowledge as stated above applies.
A prior failure to make adjustments
As we have said above, an employer would not normally be able to justify unfavourable treatment if it has failed to make reasonable adjustments which may have averted the unfavourable treatment: see Dominique v Toll Global Forwarding Ltd.
Where, in a case with similar facts to those of P v MPS, the officer alleges that he committed the misconduct because he suffers from PTSD, if the officer can demonstrate that there were adjustments that the force could have made to prevent him getting to the stage of being prosecuted for misconduct, it may be that a panel’s decision to dismiss will not be justified. We say may because the main purpose of disciplinary sanctions is not punitive. They may have that effect but the primary aims are to ensure public confidence in policing and to prevent future instances of misconduct.
The panel will, therefore, need to investigate this issue before coming to its decision. If it finds that there has been an historic failure to make adjustments, which could have prevented the situation which gave rise to the misconduct, any decision to dismiss or impose a sanction may be unjustifiable unfavourable treatment because of something arising in consequence of the officer’s disability.
Conclusions
The judgment in P will undoubtedly require changes in the way in which both misconduct cases presented and misconduct panels reach and frame their decisions in cases where any form of discrimination is a potential issue. It would be helpful if straightforward processes for panels to follow were covered in future editions of the Home Office and College of Policing guidance. Legally qualified chairs and members will, for themselves, need to be aware of discrimination law and in particular the positive obligations that exist relating to people with disabilities.