Michaelmas
Term
[2017] UKSC 65
On appeal from: [2016] EWCA Civ 2
JUDGMENT
P (Appellant) v Commissioner of Police of the
Metropolis (Respondent)
before
Lady Hale
Lord Kerr
Lord Wilson
Lord Reed
Lord Hughes
JUDGMENT GIVEN ON
25 October 2017
Heard on 3 and 4 May 2017
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Appellant
Karon Monaghan QC
Edward Kemp
(Instructed by
Slater & Gordon (UK) LLP)
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Respondent
Thomas Linden QC
Jesse Crozier
(Instructed by
Metropolitan Police Service, Directorate of Legal Services)
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Intervener (1st)
Paul Bowen QC
(Instructed by
Equality and Human Rights Commission)
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Interveners (2nd)
(written submissions only)
D Peter Herbert OBE
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(1) Equality and Human Rights Commission
(2) The Society of Black Lawyers, Operation Black
Vote
Association of Muslim Lawyers,
NHS BME Network,
BARAC,
BLAKSOX,
The Runneymede Charitable Trust
and
The National Black Police
Association
LORD REED: (with whom Lady
Hale, Lord Kerr, Lord Wilson and Lord Hughes agree)
1.
This appeal concerns the directly effective right of police officers
under EU law to have the principle of equal treatment applied to them. The
question raised is whether the enforcement of that right by means of
proceedings in the Employment Tribunal is barred by the principle of judicial
immunity, where the allegedly discriminatory conduct is that of persons
conducting a misconduct hearing.
The facts
2.
The material facts are in short compass. The appellant was assaulted in
2010, while serving as a police officer, and subsequently suffered
post-traumatic stress disorder (“PTSD”). In 2011, she was involved in an
incident which led to her arrest. She asserted that her behaviour on that
occasion was related to her PTSD. After investigation, she was made the subject
of a disciplinary charge before a misconduct hearing constituted under the Police
(Conduct) Regulations 2008 (SI 2008/2864) (“the 2008 Regulations”). There,
apart from one issue of fact which was resolved in her favour, she accepted
that she had been guilty of the misconduct alleged. She relied on her good
record as a police officer and her PTSD in mitigation. On 12 November 2012, the
persons conducting the hearing (“the panel”) imposed the sanction of dismissal
without notice.
The proceedings below
3.
The appellant appealed against her dismissal to the Police Appeals
Tribunal, which could allow her appeal if it considered the disciplinary action
taken to be unreasonable. She also instituted proceedings against the
Commissioner of Police of the Metropolis (“the Commissioner”) in an Employment
Tribunal under the Equality Act 2010 (“the 2010 Act”), in which she claimed
that the decision to dismiss her constituted discrimination arising from
disability and disability-related harassment, and was consequential upon a
failure to make reasonable adjustments. In response, the Commissioner contended
that the decision, and acts done by the panel in the course of the proceedings,
were protected from challenge by the principle of judicial immunity. The appellant
indicated her intention to seek a stay of her claim before the Employment
Tribunal, pending the outcome of her appeal to the Police Appeals Tribunal,
subject to the outcome of a pre-hearing review. In the event, a final
determination was made by the Police Appeals Tribunal on 11 June 2013 that the
appeal would not proceed.
4.
Following a pre-hearing review, the Employment Tribunal struck out the
appellant’s claim on the basis that the panel was a judicial body, and that
since the appellant’s claim was to the effect that its decision and the process
by which it was reached were unlawfully discriminatory, the claim was barred by
judicial immunity. An appeal against that decision was dismissed by the
Employment Appeal Tribunal, applying the decision of the Court of Appeal in Heath
v Commissioner of Police of the Metropolis [2004] EWCA Civ 943; [2005] ICR 329. A further appeal was dismissed by the Court of Appeal on the basis that
the present case was indistinguishable from Heath: [2016] EWCA Civ 2;
[2016] IRLR 301. Laws LJ, giving a judgment with which the other members of the
court agreed, remarked:
“However I have been troubled by a
particular feature of the case. If I am right, it would appear that claims of
discriminatory dismissal brought by police officers, where the effective dismissing
agent is a disciplinary panel such as was convened here, will not be viable in
the Employment Tribunals; yet Parliament has legislated to allow such claims to
be made.” (para 24)
The EU dimension
5.
The rights on which the appellant relies are directly effective rights
under EU law. Council Directive 2000/78/EC (“the Framework Directive”) provides
in article 1 that its purpose is to lay down a general framework for combating
discrimination on the grounds of religion or belief, disability, age or sexual
orientation as regards employment and occupation, with a view to putting into
effect in the member states the principle of equal treatment.
6.
That principle is defined in article 2(1) as meaning that there shall be
no direct or indirect discrimination whatsoever on any of the grounds referred
to in article 1. Article 2(2) defines direct and indirect discrimination.
Article 2(3) provides that harassment shall be deemed to be a form of
discrimination. Article 2(5) provides that the Directive shall be without
prejudice to measures laid down by national law which, in a democratic society,
are necessary for public security, for the maintenance of public order and the
prevention of criminal offences, for the protection of health and for the
protection of the rights and freedoms of others. It has not been suggested that
article 2(5) has any relevance in the present context. Article 5 provides that
compliance with the principle of equal treatment also requires reasonable
accommodation to be provided in relation to persons with disabilities.
7.
In relation to the scope of the Directive, article 3(1) provides that,
within the limits of the areas of competence conferred on the Community, the Directive
shall apply to “all persons, as regards both the public and private sectors,
including public bodies”, in relation to a variety of matters relating to
employment and occupations, including “employment and working conditions,
including dismissals”. Article 3(4) permits member states to exclude their armed
forces from the application of the Directive, in so far as it relates to
discrimination on the grounds of disability and age. There is no corresponding
provision in relation to police forces.
8.
In relation to remedies and enforcement, article 9(1) requires member
states to “ensure that judicial and/or administrative procedures ... for the
enforcement of obligations under this Directive are available to all persons
who consider themselves wronged by failure to apply the principle of equal
treatment to them”. Article 17 requires member states to lay down the rules on
sanctions applicable to infringements of the national provisions adopted
pursuant to the Directive, and to take all measures necessary to ensure that
they are applied. The sanctions may comprise the payment of compensation to the
victim, and must be “effective, proportionate and dissuasive”.
The Equality Act 2010
9.
The Framework Directive is currently implemented in domestic law by the
2010 Act. In Part 2 of the Act, section 4 identifies protected characteristics,
including disability as defined by section 6. Section 13 defines discrimination
as including the less favourable treatment of a person because of a protected
characteristic. Sections 15 and 19 make further provision in relation to
discrimination against disabled persons. Sections 20 to 22 make provision in
relation to the duty to make reasonable adjustments for disabled persons.
Section 26 makes provision in relation to harassment related to a protected
characteristic.
10.
In Part 5 of the Act, section 39 provides that an employer (A) must not
discriminate against a person (B) in a variety of ways, including by dismissing
B. It also provides that a duty to make reasonable adjustments applies to an
employer. Section 40 provides that an employer (A) must not, in relation to
employment by A, harass a person (B) who is an employee of A’s.
11.
Special provision is made in relation to police officers by sections 42
and 43. In particular, section 42(1) provides that, for the purposes of Part 5
of the Act, holding the office of constable is to be treated as employment by
the chief officer in respect of any act done by the chief officer in relation
to a constable, and as employment by the responsible authority in respect of
any act done by the authority in relation to a constable. That provision is
necessary because, at common law, a police officer is not an employee but the
holder of an office. The expressions “chief officer” and “responsible authority”
are defined by section 43(2) and (3) respectively. In relation to officers in
the Metropolitan Police, the former expression refers to the Commissioner, and
the latter expression refers to the Mayor’s Office for Policing and Crime.
12.
It is relevant to note that section 42(1) is in substance a re-enactment
of section 64A of the Disability Discrimination Act 1995, which was introduced
by regulation 25 of the Disability Discrimination Act 1995 (Amendment)
Regulations 2003 (SI 2003/1673). Those Regulations were made under the European
Communities Act 1972 (“the 1972 Act”), in order to implement the Framework
Directive.
13.
Ancillary provisions are set out in Part 8 of the 2010 Act. Section 109
is concerned with the liability of employers and principals. Subsection (1)
provides that anything done by a person (A) in the course of A’s employment
must be treated as also done by the employer. Subsection (2) provides that
anything done by an agent for a principal, with the authority of the principal,
must be treated as also done by the principal.
14.
Section 120 confers jurisdiction on an Employment Tribunal to determine
complaints relating to contraventions of Part 5. Where a tribunal finds a
contravention, it can make a declaration, order the payment of compensation, or
make appropriate recommendations: section 124(2). It can thus provide a remedy,
in cases of dismissal or other disciplinary action, without necessarily
affecting the dismissal or other action itself.
Police misconduct panels
15.
Police misconduct panels are established under regulations made by the
Secretary of State in the exercise of powers conferred by the Police Act 1996.
The Regulations which were in force at the time when section 64A of the
Disability Discrimination Act 1995 was introduced left the final decision in
cases of dismissal to the chief officer or the police authority. That position
was altered by the 2008 Regulations, which were in force at the time of the
appellant’s dismissal. Those Regulations were themselves revoked and replaced
by the Police (Conduct) Regulations 2012 (SI 2012/2632) (“the 2012 Regulations”).
The latter Regulations, as amended by the Police (Conduct) (Amendment)
Regulations 2015 (SI 2015/626), are broadly (but not entirely) in similar
terms.
16.
The Schedule to the 2008 Regulations sets out the standards of
professional behaviour expected of police officers. Regulation 3(1) defines
misconduct as a breach of the standards set out in Schedule 1, and gross
misconduct as a breach so serious that dismissal would be justified. By
regulation 5, the Regulations apply where an allegation comes to the attention
of an appropriate authority which indicates that the conduct of a police
officer may amount to misconduct or gross misconduct. In terms of regulation
3(1), the “appropriate authority”, where the officer concerned is a senior
officer (defined as meaning an officer holding a rank above that of chief
superintendent) is the police authority, and in any other case is the chief
officer. In the present case, the appropriate authority was the chief officer.
17.
Ignoring immaterial details, the procedure after an allegation comes to
the attention of the appropriate authority can be summarised as follows. The
appropriate authority is required by regulation 12(1) to assess whether the
conduct alleged, if proved, would amount to misconduct or gross misconduct. If,
as in the present case, the appropriate authority determines that it would
amount to gross misconduct, the matter then has to be investigated: regulation
12(4). The next stage is for the appropriate authority to appoint an
investigator in accordance with regulation 13, and for an investigation to be
carried out in accordance with regulations 14 to 18. The next stage is for the
appropriate authority, on receipt of the investigator’s report, to determine
whether the officer concerned has a case to answer in respect of misconduct or
gross misconduct, in accordance with regulation 19. Where, as in the present
case, the appropriate authority determines that there is a case to answer in
respect of gross misconduct, it is required under regulation 19(4) to refer the
case to a misconduct hearing, defined by regulation 3(1) as a hearing at which
the officer may be dealt with by disciplinary action up to and including
dismissal. Under regulation 21, the officer is then entitled to be provided by
the appropriate authority with written notice of the conduct that is the
subject matter of the case, and how that conduct is alleged to amount to gross
misconduct. Subject to the “harm test” explained in regulation 4, the officer
is also entitled to a copy of the investigator’s report, or such parts of it as
refer to him, together with any document referred to in the report which
relates to him. Under regulation 22, the officer is required to provide to the
appropriate authority written notice of any allegations which he disputes and
any arguments on points of law which he wishes to be considered by the persons
conducting the misconduct hearing, together with a copy of any document relied
on. Lists of proposed witnesses also have to be exchanged: regulation 22(4).
18.
The form of the misconduct hearing depends on the rank of the officer
concerned. Where, as in the present case, the officer is not a senior officer,
regulation 25(4) requires the hearing to be conducted by a panel of three
persons appointed by the appropriate authority, one of whom is to be a police
officer, another of whom is to be a human resources professional, and the third
of whom is to be selected from a list of candidates maintained by the
authority. One of the three (either a senior police officer or a senior human
resources professional) is to chair the hearing.
19.
Both the officer concerned and the appropriate authority have the right
to be legally represented at the hearing: regulation 7(1) and (4). The person
chairing the hearing has to determine which, if any, of the proposed witnesses
should attend the hearing and should give evidence at it: regulation 23(2) and
(3). He or she has no power to compel the attendance of witnesses, although he
or she can cause a witness who is a police officer to be ordered to attend:
regulation 23(3). Nor can he or she administer an oath. Under regulation 28,
the members of the panel are to be provided with copies of the documents
provided to or by the officer under regulations 21 and 22 respectively, and
also, where the officer disputes any part of the case against him, any other
documents which, in the opinion of the appropriate authority, should be
considered. Copies of documents in the latter category have also to be provided
to the officer. Subject to specified exceptions, the hearing is to be in
private: regulation 32(1).
20.
Subject to specified requirements, the procedure at the hearing is to be
determined by the person chairing it: regulation 34(1). The person representing
the officer is entitled to address the hearing and to put questions to
witnesses, subject to the right of the person chairing the hearing to determine
whether any question should or should not be put.
21.
At the conclusion of the hearing, the persons conducting the hearing
have to decide whether the officer’s conduct amounts to misconduct, gross
misconduct or neither: regulation 34(13). Where, as in the present case, they
find that the conduct amounts to gross misconduct, they may impose any of the
disciplinary actions specified in regulation 35(2)(b), ranging from management
advice to dismissal without notice. Where, as in the present case, there is a
finding of gross misconduct and the persons conducting the hearing decide that
the officer should be dismissed, regulation 35(9) directs that the dismissal
shall be without notice.
22.
An officer other than a senior officer has a right of appeal to the
Police Appeals Tribunal against the panel’s finding of misconduct or gross
misconduct, or against the disciplinary action taken by the panel: regulation
36(2) of the 2008 Regulations, read together with regulation 4 of the Police
Appeals Tribunals Rules 2008 (SI 2008/2863) (“the 2008 Rules”), subsequently
replaced by the broadly similar Police Appeals Tribunals Rules 2012 (SI
2012/2630). The grounds of appeal were specified at the material time in
regulation 4(4) of the 2008 Rules. Put shortly, they are unreasonableness,
fresh evidence, and breach of the statutory procedures or other unfairness.
Although it is conceded that it might be possible to bring a complaint of
discriminatory behaviour under the last of these headings, the tribunal does
not possess either the same expertise in relation to equal treatment, or the
same powers, as an Employment Tribunal. In particular, it has no power to make
declarations, order the payment of compensation, or make appropriate
recommendations. Its only power is either to allow or dismiss the appeal
against the panel’s finding or the disciplinary action taken. Neither of those
forms of relief will necessarily be an appropriate remedy in all cases of
discrimination.
Heath v Commissioner of Police of the Metropolis
23.
The case of Heath concerned events pre-dating the Framework
Directive. A civilian employee of a police force brought a claim in an
Employment Tribunal under the Sex Discrimination Act 1975 in relation to the
conduct of members of a disciplinary board constituted under the Police
(Discipline) Regulations 1985 (SI 1985/518). She complained that, as a witness
in proceedings before the board, she had been treated by its members in a
manner which amounted to sex discrimination. The tribunal held that it had no
jurisdiction, on the basis that the members of the board enjoyed judicial
immunity. The proceedings before the tribunal and the Employment Appeal
Tribunal appear to have been conducted without any reference to EU law, but
before the Court of Appeal reliance was placed on article 6 of the Equal
Treatment Directive, Council Directive 76/207/EEC.
24.
The Court of Appeal accepted that the members of the disciplinary board
enjoyed judicial immunity at common law. It is unnecessary for this court to
consider the correctness or otherwise of that conclusion, or to consider the
issue which divided the Court of Appeal, namely whether the immunity extended
to the Commissioner’s selection of the membership of the board.
25.
The issues arising in relation to EU law were considered by Auld LJ in a
judgment with which, in relation to this issue, the other members of the court
agreed. He noted that article 1 of the Equal Treatment Directive required
member states to take measures to implement the principle of equal treatment
for men and women in relation to various stages of employment, including
working conditions. Article 5 provided that application of the principle of
equal treatment with regard to working conditions meant that men and women
should be guaranteed the same conditions. Article 5 also required member states
to take the measures necessary to ensure that any laws, regulations and
administrative provisions contrary to the principle of equal treatment should
be abolished. Article 6 required member states to introduce measures enabling
the principle of equal treatment to be relied on before national courts.
26.
Auld LJ did not address the question whether the discrimination alleged
fell within the scope of the Directive, but identified the first matter as
being whether and to what extent the common law rule of judicial immunity
should be governed by the Directive in respect of claims made under the 1975
Act. In that regard, Auld LJ considered it important not to confuse procedural
or jurisdictional qualifications, such as judicial immunity, with domestic
provisions which operated to deprive a successful claimant in respect of an EU
right of his or her full and appropriate remedy, such as the cap on
compensation considered in Marshall v Southampton and South West Hampshire
Health Authority (Teaching) (No 2) (Case C-271/91) [1994] QB 126. If the Directive
were to displace judicial immunity, it would follow, so it was said, that it
should operate so as to disapply other similar rules, such as sovereign
immunity, res judicata, abuse of process, compromise of claims and estoppels.
This was regarded as an extravagant proposition. In Auld LJ’s view, the terms
of the Directive allowed of qualification where member states, within the
margin of their appreciation, considered it necessary. The eradication of
unlawful discrimination was not of such overriding importance that it should
hold sway over other fundamental norms of our law.
Analysis
27.
In a case where directly effective EU rights are in issue, EU law must
be the starting point of the analysis. It may also be the finishing point,
since it takes priority over domestic law in accordance with the provisions of
the European Communities Act 1972.
28.
The Framework Directive confers on all persons, including police
officers, a directly effective right to be treated in accordance with the
principle of equal treatment in relation to employment and working conditions,
including dismissals: article 3(1)(c). That right is subject to specified
exceptions and qualifications, none of which is applicable to the present case.
The United Kingdom is obliged, under article 9(1), to ensure that judicial and/or
administrative procedures are available to all persons who consider themselves
wronged by failure to apply the principle of equal treatment to them. Under
article 17, sanctions which are effective, proportionate and dissuasive must be
applied. The procedures under national law must also comply with the general principles
of effectiveness and equivalence, and with the right to an effective remedy
under article 47 of the Charter of Fundamental Rights of the European Union.
29.
The principle of equivalence entails that police officers must have the
right to bring claims of treatment contrary to the Directive before Employment
Tribunals, since those tribunals are the specialist forum for analogous claims
of discriminatory treatment under our domestic law. They are expert in the
assessment of claims of discriminatory treatment, and have the power to award a
range of remedies including the payment of compensation, even in cases where
the dismissal or other disciplinary action itself stands. They therefore fulfil
the requirements of the principle of effectiveness. To leave police officers
with only a right of appeal to the Police Appeals Tribunal would not comply
either with the principle of equivalence, since analogous complaints under
domestic law can be made to an Employment Tribunal, nor with the principle of
effectiveness, since (for example) the Police Appeals Tribunal cannot grant any
remedy in cases where the discriminatory conduct is not such as to vitiate the
decision of the misconduct panel.
30.
There can be no question of the United Kingdom being entitled to deny
police officers an effective and equivalent remedy, where their rights under
the Directive have been infringed, as a matter falling within a national margin
of appreciation. Nor, indeed, is it suggested that there could be. On the
contrary, the right not to be discriminated against on grounds including
disability is a fundamental right in EU law, protected by article 21(1) of the
Charter. It follows that, even if it is designed to protect the officer under
investigation, the creation of a statutory process which entrusts disciplinary
functions in relation to police officers to persons whose conduct might
arguably attract judicial immunity under domestic law cannot have the effect of
barring complaints by the officers to an Employment Tribunal that they have
been treated by those persons in a manner which is contrary to the Directive.
National rules in relation to judicial immunity, like other national rules, can
be applied in accordance with EU law only in so far as they are consistent with
EU law: see, for example, Köbler v Austria (Case C-224/01) [2004] QB 848; [2003] ECR I-10239, and Commission v Italy (Case C-379/10)
[2011] ECR I-180. The reasoning of the Court of Appeal in Heath, in
relation to EU law, cannot therefore be regarded as correct.
31.
In the 2010 Act, Parliament sought to implement the Directive
specifically in relation to police officers, as Laws LJ noted in the Court of
Appeal. As explained earlier, section 42(1) deems a constable to be the
employee of the chief officer for the purposes of Part 5 of the Act, in
relation to any act done by the chief officer, and the employee of the
responsible authority, in relation to any act done by that authority. Section
120 confers jurisdiction on an Employment Tribunal to determine any complaints
relating to contraventions of Part 5. Those provisions plainly confer on police
constables the right to bring proceedings before employment tribunals in order
to challenge discrimination by chief officers and responsible authorities in
relation to employment and working conditions, including dismissals. It was
presumably envisaged by Parliament that the exercise of disciplinary functions
in relation to police officers would fall within the scope of those provisions.
That is indeed the case in relation to senior officers, under regulation 34(1)
of the 2012 Regulations, and probationary constables, under regulation 13 of
the Police Regulations 2003 (SI 2003/527).
32.
The problem is that the disciplinary functions in relation to police
officers who have completed their period of probation, other than senior
officers, are entrusted under secondary legislation to panels; and the exercise
of those functions by a panel is not an act done by either the chief officer or
the responsible authority. Nor can the exercise of those functions generally be
regarded as something done by an employee of the chief officer or of the
responsible authority in the course of his employment, within the meaning of
section 109(1), bearing in mind that the panel exercises its most significant
functions collectively, and that, at least, those of its members who are police
officers will not be employees. Nor can the panel be regarded as exercising its
disciplinary functions as the agent of the chief officer or the responsible
authority, within the meaning of section 109(2): under the 2008 Regulations,
the relevant powers are conferred directly on the panel in its own right. The
consequence is that, if section 42(1) is read literally, it is deprived of much
of its practical utility, and it fails fully to implement the Directive,
contrary to its purpose.
33.
The way to resolve the problem is to interpret section 42(1) of the 2010
Act as applying to the exercise of disciplinary functions by misconduct panels
in relation to police constables. This runs with the grain of the legislation,
and is warranted under EU law, as given domestic effect by the 1972 Act, in
accordance with such cases as Marleasing SA v La Comercial Internacional de
Alimentacion SA (Case C-106/89) [1990] ECR I-4135. In particular,
section 42(1) can be interpreted conformably with the Directive if it is read
as if certain additional words (italicised in the following version) were
present:
“(1) For the purposes of this
Part, holding the office of constable is to be treated as employment -
(a) by the chief officer,
in respect of any act done by the chief officer or (so far as such
acts fall within the scope of the Framework Directive) by persons conducting a
misconduct meeting or misconduct hearing in relation to a constable or
appointment to the office of constable;
(b) by the responsible
authority, in respect of any act done by the authority in relation to a
constable or appointment to the office of constable.”
So interpreted, the Act overrides, by force of statute,
any bar to the bringing of complaints under the Directive against the chief
officer which might otherwise arise by reason of any judicial immunity
attaching to the panel under the common law.
34.
It should be emphasised that this conforming interpretation has to be
understood broadly: the court is not amending the legislation, and the
italicised words are not to be treated as though they had been enacted. The
expressions “misconduct meeting” and “misconduct hearing”, for example, have
not been defined by reference to the relevant regulations. Nor is the use of
those expressions intended to exclude the adoption of a similar approach in
relation to other types of panel if that is necessary in order to comply with
the Directive. The italicised words are merely intended to indicate how section
42(1) should be interpreted in a case such as the present, in order to avoid a
violation of EU law.
Conclusion
35.
For these reasons, I would hold that the reasoning in Heath v
Commissioner of Police of the Metropolis in relation to EU law was unsound,
allow the appeal, and remit the appellant’s case to the Employment Tribunal.
LORD HUGHES:
36.
For my part I agree with the judgment of Lord Reed.
37.
I add only that the principle of judicial immunity serves a legitimate
end and generally achieves a proportionate and useful purpose. It exists for
the protection not only of tribunal members, but also of witnesses, against
further litigation inspired by what may well be deep disappointment on the part
of those who have not been successful in contested proceedings before the
tribunal. It also prevents most collateral challenges to the decisions of
tribunals which have been set up, usually by legislation, with the task of
making a final decision. The proliferation of litigation is not generally in
the public interest, which is best served by a single, final, decision after
due process, appealable in the event of demonstrated error of law or principle.
38.
For the reasons so clearly explained by Lord Reed, section 42 of the
Equality Act (like its predecessor), conformably with the Framework Directive,
is plainly meant to provide police constables with the right to complain to an
Employment Tribunal of discrimination, and must be construed in the manner
which he has set out. It remains the consequence that in relation to
discrimination there exists considerable potential for parallel or collateral
proceedings in an Employment Tribunal and the statutory Police Appeals
Tribunal. The former can grant relief relating to discrimination, but cannot
direct an alteration to the outcome of the disciplinary proceedings. The latter
cannot grant discrimination-related relief, and does not have the expertise of
an Employment Tribunal in that area, although it can and should consider any
suggested discrimination when hearing an appeal against that outcome. The inconvenience
is well illustrated by the present case, in which P’s complaint of
discrimination was explicitly limited by her to the outcome of the disciplinary
proceedings. Her case, as set out in her witness statement supporting her
Employment Tribunal application, was expressly that her mitigation had not, in
breach of the duty to avoid discrimination, been accepted when it should have
been. She said this:
“I am not complaining about
anything which was said or done during the course of the disciplinary hearing
in November 2012; I am simply complaining that the wrong decision was reached
by the MPS at the end of that hearing.”
39.
For the reasons which Lord Reed explains, this division of
justiciability is, in the present state of the legislation, unavoidable. It
might, however, usefully be considered in the event of any review of the
overall structure.
