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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Commissioner of Police of The Metropolis v. Nagy & Anor [2004] UKEAT 0399_04_2209 (22 September 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0399_04_2209.html Cite as: [2004] UKEAT 399_4_2209, [2004] UKEAT 0399_04_2209 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MR M CLANCY
MR F MOTTURE
APPELLANT | |
(2) DETECTIVE SERGEANT LENTHALL |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR DAMIAN BROWN (of Counsel) Instructed by: Metropolitan Police Service Directorate of Legal Services Wellington House 67-73 Buckingham Gate London SW1E 6BE |
For the Respondents | (1) MR ADAM SOLOMON (of Counsel) Instructed by: Messrs Turbervilles Solicitors 122 High Street Uxbridge Middlesex UB8 1JT (2) Neither Present nor Represented |
SUMMARY
A tribunal did not err in refusing to strike out claims of sex discrimination made by a civilian employee of a police force for a claim applying the principle in Chief Constable of Cumbria v McGlennon [2002] ICR 1156 and under the Equal Treatment Directive in Chief Constable of Kent Police v Baskerville [2003] ICR 1463 should be heard unless it is certain to fail. The part of the claim in respect of the investigation of an officer under police discipline regulations is certain to fail: Yearwood v Commissioner of Police for the Metropolis UKEAT/0310/03.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The legislation
"24 Section 6 Sex Discrimination Act 1975 proscribes discrimination against applicants and employees. Section 6(2) states:
"(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -
(a) in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or
(b) by dismissing her, or subjecting her to any other detriment."
25 As regards the police, section 17(1) provides:
"(1) For the purposes of this Part, the holding of the office of constable shall be treated as employment -
(a) by the chief officer of police as respects any act done by him in relation to a constable of that office;
(b) by the police authority as respects any act done by them in relation to a constable of that office."
Sections 41 and 42 concern liability of employers as principals and aiding the commission of unlawful acts. Section 41 provides:
"(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.
(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of this' Act as done by that other person as well as by him.
(3) In proceedings brought under this Act against any person in respect of an act alleged to have been done by an employee of his, it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment acts of that description."
26 Section 42 states:
"(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.
(2) For the purposes of subsection (1), an employee or agent for whose act the employer or principal is liable under section 41 (or would be so liable but for section 41 (3)) shall be deemed to aid the doing of the act by the employer or principal.
(3) A person does not under this section knowingly aid another to do an unlawful act if -
(a) he acts in reliance on a statement made to him by that other person that, by reason of any provision of this Act, the act which he aids would not be unlawful, and
(b) it is reasonable for him to rely on the statement.""
The facts
1 The Applicant presented a claim to the Employment Tribunal on 24 May against the First and Second Respondents claiming that she was:
(1) subjected to sexual harassment by the Second Respondent from June 1988 to October 1999;
(2) and that the First Respondent failed to take any action when she made the complaint to them stating that by December 1999 DSL had not been interviewed and nor had the investigation been completed. The Applicant had periods of illness which she said was a result of the stress incurred, she was absent from work from 23 November 1999 to 16 March 1999 and again absent from 21 April 1999 to 8 May 1999. She alleged that she had been treated less favourably by the Respondents on the grounds of her sex.
2 She also alleged that there was an implied term of trust and confidence in the contract of employment that had been broken by the Respondents' by their failure to take her complaints seriously and to investigate the matter thoroughly and expeditiously.
3 The First Respondent in their grounds of resistance indicated that the matter was now under investigation and the Second Respondent was being investigated with the possibility of disciplinary proceedings. Subsequently the Second Respondent fell ill and retired from the Police Force. A stay of all proceedings was requested by the First Respondent while this matter was investigated and this was opposed by the Applicant's legal representatives.
…
10 On the first issue we heard submissions from Ms Mountfield and Mr Brown. Ms Mountfield pointing out that in the IT1 it is clear that the Applicant's is complaining about the lack of action and investigation by the First Respondent when she made a complaint about the Second Respondent and that this could be the basis of a claim for sex discrimination i.e. that they would not have treated a man in the same way and would be the basis of her claim for breach of contract as a breach of the condition of trust and confidence. She referred us to her statement which was part of the IT1 which had been submitted. A statement was dated 21 May and in that statement she says:
"I have lost faith in my employer to protect me or indeed see that the person responsible for changing my life in such a dramatic fashion is dealt with properly. I place of myself in the hands of their system and have been grossly let down. I feel I have been victimised as I am female and my situation has not been taken seriously by those whose responsibility is to my welfare whilst at work."
She goes on to say later:
"I also feel the investigation into this matter has not been carried out with my interests at heart."
…
13 Ms Mountfield agreed that the complaints set out in her skeleton arguments as in paragraph 3.3 and 4 sets out sufficiently her client's claim and the Tribunal agreed. The complaint therefore that the Applicant makes in this first issue is:
(1) a complaint against the First Respondent that from October 1999 when the Applicant complained about the conduct of the Second Respondent until May 2000 when she put in her ET1 the First Respondent failed to take her complaint seriously or investigate properly, in breach of the implied contractual duty of mutual trust and confidence.
(2) A complaint against the First Respondent that from October 1999 when the Applicant complained about the conduct of the Second Respondent, until May 2000 when she put in her ET1, the First Respondent failed to take her complaint seriously or investigate timelessly [sic] that it may be inferred from all circumstances that this was less favourable treatment on the grounds of her sex and that the complaint of like behaviour made by a man would have been taken more seriously and that this was also sex discrimination contrary to sections 1(1)(a) and 6(2)(a) and/or (b) of the Sex Discrimination Act.
(3) We then considered whether it will be just and equitable to extend the time limit. We heard evidence from the Applicant and from her Mr M her friend who accompanied her to the meetings and to the solicitor and from her Dr E, her General Practitioner. We also heard from DSL. From the evidence we find the following facts:
(a) The last act of harassment complained of occurred in October 1999 and she lodged a complaint to the First Respondent on 19 October 1999. No one for the First Respondent advised the Applicant of the rights to go to an Employment Tribunal or the time limits involved. He [sic] was not referred to any policy documents.
(b) The Applicant had been working at the time as a civilian at the Ruislip Police Station as an administrative officer. She had joined the MP service in June 1993 and worked in the Personnel Office at the Paddington Police Station. In June 1996 she had transferred to Uxbridge Police Station and had begun working on the telephone reporting section. From June 1997 she was working on the major crime and burglary books and her role was to check through the crime entries to ensure details were correct etc. Ms DSL was her line manager and completed her appraisal on each year. The Applicant was not handed the grievance handling pack which has in it a direction that:
"The options available to the victim should clearly and sensitively explained. You must inform the aggrieved of the time limits imposed relating to the lodging of the grievance with the Industrial Tribunal which is three calendar months less one day from the date of dismissal or last incident of alleged discrimination.""
"1 The Originating Application in this matter was issued in May 2000. I was assured by all Counsel that it was not necessary for me to go into the past history of the matter in any detail. Mr Mead explained that in simplistic terms there were four allegations as follows:
1.1 A complaint of sexual harassment against the Second Respondent;
1.2 That the First Respondent was vicariously liable for the acts of the Second Respondent;
1.3 That there was a breach of the implied contractual term relating to the maintenance of mutual trust and confidence by the First Respondent in that it had failed to investigate the Applicant's complaint;
1.4 That such failure was also a breach of the Sex Discrimination Act 1975."
The Commissioner's case
The Applicant's case
The Legal Principles