The question of how misconduct proceedings should address allegations of discrimination or harassment has now been the subject of a handful of High Court decisions. What falls from them is the importance of the misconduct allegations setting out the specific heads of discriminatory behaviour said to have been committed, whether such conduct is deliberate or accidental, and the effect of such behaviour. This blog post reviews those cases and their relevance to how future misconduct proceedings are presented, defended and determined.
If concerns are raised that a person might be vulnerable to radicalisation, how long can a police force hold data about that person? This was the question facing the High Court in the case of R (II) v Commissioner of Police for the Metropolis  EWHC 2528 (Admin), which held that the police’s continued retention of data a sixteen year old was contrary to the Data Protection Act 2018 and Article 8. In finding this, the court held that a force’s retention of data must be proportionate, what is proportionate in any given situation is fact-specific and that when the police cease to be able to identify a policing purpose for continued retention of personal data, it should be deleted.
In R (AB) v Chief Constable of Hampshire Constabulary  EWHC 3461 (Admin), the Divisional Court considered a claim on behalf of a boy with severe learning and communication disabilities, that police had failed properly to investigate what appeared to be a disclosure by him of a sexual assault during a stay at in respite care. He argued that they had wrongly proceeded to interview him despite no witness intermediary being available and had subsequently failed to re-interview him with an intermediary. He argued that this was a breach of Article 3, and unlawful disability discrimination. The Court dismissed the claim, also giving important procedural guidance.
The Court of Appeal in (1) Capita Customer Management Ltd v Ali & (2) Chief Constable of Leicestershire v Hextall  EWCA Civ 900, has overturned the Employment Appeal Tribunal and held that employees do not unlawfully discriminate against men when when paying them less for shared parental leave than they pay women when taking enhanced maternity pay as part of maternity leave. Such claims are not sex discrimination claims but equal terms claims, to be brought under the Equal Pay Act 1970, which are bound to fail because they relate to terms of work affording special treatment to woman in connection with pregnancy of childbirth. An appeal to the Supreme Court is possible.
The Employment Appeal Tribunal has handed down judgment in the appeal case of Hextall v Leicestershire Police UKEAT/0139/17/DA. Mr Hextall is a police officer who took Shared Parental Leave. However, under the informal national policy that exists at the current time in relation to the payment of such leave, he was paid only at the statutory rate and not the enhanced rate paid to mothers taking maternity leave.
Mr Hextall argued that that policy put men at a particular disadvantage compared to women because it acted as a financial disincentive to their taking such leave where mothers had the alternative option of taking maternity leave. As such, he said, it constituted unlawful indirect sex discrimination. Hextall is linked to another (non-police) case, Capita v Ali UKEAT/0139/17/DA.
In short, the Employment Appeal Tribunal decided that a failure to pay a male police officer taking Shared Parental Leave the same rate of pay as a female police officer taking Maternity Leave potentially constitutes indirect sex discrimination. Jonathan Davies represented Leicestershire Police in both the employment tribunal and the Employment Appeal Tribunal.