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  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.
The case of Durrant v Chief Constable of Avon & Somerset Constabulary  EWCA Civ 1808, which arose out of the arrest of Ms Durrant on 13 June 2009, seems finally to have come to a conclusion, after three visits to the Court of Appeal. It is worth reading for its discussion on the award of damages for injury to “loss of feelings” where the police have racially discriminated against a person whom they have arrested and when aggravated and/or exemplary damages will be awarded.
The Supreme Court has held in P v Commissioner of Police of the Metropolis  UKSC 65, that police misconduct hearings no longer benefit from judicial immunity in respect of discrimination claims. They also held that the Chief Constable is vicariously liable for the discriminatory acts of such panels. However, the decision related to an internal panel under the old regime when a misconduct hearing panel was chaired by an assistant chief constable. Three awkward issues arise:
- Whether its reasoning applies to panels chaired by a Legally Qualified Chair (‘LQC’) under the new regime;
- If so, whether the Chief Constable is legally responsible for the acts of an independent panel or whether the LQC and the other members of such panels would be liable as a panel;
- If the LQC and panel members are potentially liable in damages in their own names, regardless.