In P v Commissioner of Police of the Metropolis, the Supreme Court ruled that police officers can bring a discrimination claim against a police misconduct panel. The case renders previous case law that found that EU law could not override the principle of judicial immunity unreliable (Heath v Commissioner of Police of the Metropolis).
The Equality Act 2010 is clear that police officers benefit from protection against discrimination since a police constable is considered to be an employee of the chief officer or responsible authority. The complicating factor in this case, however, was that the decision to dismiss was taken by a misconduct panel. This did not sit happily with a literal reading of the Equality Act, but it is clear now that the law needs to be read in such a way that misconduct meetings or hearings are also covered by this legislation.
The police officer in this case accepted before a police misconduct panel that she had committed misconduct as a result of being arrested, but argued that her strong track record as a police officer previously – and the fact that she suffered from post-traumatic stress disorder (PTSD) – had impacted on her actions. The police officer had previously been assaulted on duty, which had caused her PTSD, but the police misconduct panel leading the hearing decided that she should be dismissed without notice.
The police officer turned to the employment tribunal to assert her claims for disability discrimination and disability-related harassment. She argued that there had been a failure to make reasonable adjustments, which amounts to unlawful discrimination under the Equality Act. However, her claim was struck out by the employment tribunal and at every appeal stage after that until the case reached the Supreme Court. This was because the misconduct panel was viewed as a judicial body and, therefore, the claim was barred based on the principle of judicial immunity.
The police officer then turned to EU law to continue her challenge – one of the cornerstones of which is the principle of equal treatment. Since EU law takes precedence over UK law, UK courts must comply with principles of effectiveness and equivalence with reference to EU law. If the police officer could only complain to the Police Appeals Tribunal, there would be no equivalence with the right to bring claims about unequal treatment; this would be contrary to EU law.
The judgment recognised that there is a place and purpose for judicial immunity, namely to protect tribunal members and witnesses from aggrieved litigants wanting to take up cases against them. However, it is now clear that national rules in relation to judicial immunity cannot prevent complaints to the employment tribunal by police officers. Those rules have to be applied in accordance with EU law and would only work in so far as they are consistent with EU law.
This case is another example of justice served as a result of being part of Europe, and calls into question how employment rights will continue to develop without the protection afforded by EU law in a post-Brexit environment.
Rhian Radia is a partner and head of employment at Hodge Jones & Allen