Judicial Immunity of Disciplinary Proceedings against Police Officers Conducted by the Disciplinary Bodies
December 27, 2017
P v Commissioner of Police of the Metropolis
Supreme Court of the United Kingdom
 UKSC 65 on appeal from  EWCA Civ 2
Hale J, Kerr J, Wilson J, Reed J & Hughes J
25 October, 2017
Reported by Linda Awuor, Kakai Toili & Enock Amolo
Bill of rights–fundamental rights and freedoms – equal treatment – equal treatment of police officers under European Union law – equal treatment of police officers under European Union law by means of proceedings in an Employment Tribunal -whether the enforcement of the principle of equal treatment of police officers under the EU law bymeans of proceedings in the Employment Tribunal was barred by the principle of judicial immunity- Charter of Fundamental Rights of the European Union (2000/C 364/01), articles 21, 47 ; Equality Act, section 42
Judicial Immunity–policemisconduct hearing panels-judicial immunity of police misconduct hearing panels- whether the misconduct hearing panel constituted under the Police Conduct Regulations, 2008 (the 2008 Regulations) had judicial immunity while hearing and determining the disciplinary charge against a police officer- Police Conduct Regulations, 2008
The Appellant was assaulted in 2010 while serving as a police officer and subsequently suffered post-traumatic stress disorder (PTSD). She was later involved in an incident which led to her arrest. She asserted that her behavior 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 (the 2008 Regulations).
She appealed against her dismissal to the Police Appeals Tribunal that her dismissal was 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.
The Employment Tribunal struck out her claim on the basis that the panel was a judicial body and that since her claim was to the effect that it was a decision and the process by which it was reached was unlawfully discriminatory; the claim was barred by judicial immunity.
i. Whether the enforcement of the principle of equal treatment of police officers under the EU law by means of proceedings in the Employment Tribunal was barred by the principle of judicial immunity.
ii. Whether the misconduct hearing panel constituted under the Police Conduct Regulations, 2008 (the 2008 Regulations) had judicial immunity while hearing and determining the disciplinary charge against a police officer.
Relevant Provisions of the Law:
Charter of Fundamental Rights of the European Union (2000/C 364/01)
Article 21 – Non-discrimination
1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
Article 47 – Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.
Equality Act 2010 (United Kingdom)
Section 42 (1)- Identity of employer
(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 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.
Section 120 – Jurisdiction
(1) An employment tribunal has, subject to section 121, jurisdiction to determine a complaint relating to—
(a)a contravention of Part 5 (work);
(b)a contravention of section 108, 111 or 112 that relates to Part 5.
(2) An employment tribunal has jurisdiction to determine an application by a responsible person (as defined by section 61) for a declaration as to the rights of that person and a worker in relation to a dispute about the effect of a nondiscrimination rule.
Council Directive 2000/78/EC (Framework Equality Directive)
Article 3 – Scope
1. Within the limits of the areas of competence conferred on the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to:
(c)…employment and working conditions, including dismissals and pay;
Article 9 – Defence of rights
1. Member States shall ensure that judicial and/or administrative procedures, including where they deem it appropriate conciliation 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, even after the relationship in which the discrimination is alleged to have occurred has ended.
Article 17 – Sanctions
Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive. Member States shall notify those provisions to the Commission by 2 December 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them.
Held by majority:
- Article 3(1)(c) of the Framework Directive (Framework) conferred 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. That right was subject to specified exceptions and qualifications, none of which was applicable to the case.
- The United Kingdom was obliged under article 9(1) of the framework to have ensured that judicial and administrative procedures were available to all persons who considered themselves wronged by failure to have applied the principle of equal treatment to them.
- Under article 17 of the framework, sanctions which were effective, proportionate and dissuasive had to be applied. The procedures under national law had to 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 (the Charter) on the right to an effective remedy and to a fair trial.
- The principle of equivalence entails that police officers had to have the right to bring claims of treatment contrary to Council Directive 2000/78/EC (the Directive) before Employment Tribunals since those tribunals were the specialist forum for analogous claims of discriminatory treatment under the domestic law. They were expert in the assessment of claims of discriminatory treatment and had the power to award a range of remedies including the payment of compensation even in cases where the dismissal or other disciplinary action was the case. They fulfilled the requirements of the principle of effectiveness.
- To have left police officers with only a right of appeal to the Police Appeals Tribunal would not have complied either with the principle of equivalence, since analogous complaints under domestic law could have been made to an Employment Tribunal, nor with the principle of effectiveness, since the Police Appeals Tribunal could not have granted any remedy in cases where the discriminatory conduct was not such as to vitiate the decision of the misconduct panel.
- The right not to be discriminated against on grounds of disability was a fundamental right in EU law, protected by article 21(1) of the Charter. The creation of a statutory process which entrusted disciplinary functions in relation to police officers to persons whose conduct might have arguably attracted judicial immunity under domestic law could not have had the effect of barring complaints by the officers to an Employment Tribunal that they had been treated by those persons in a manner which was contrary to the Directive, even if it was designed to protect the officer under investigation.
- National rules in relation to judicial immunity like other national rules could be applied in accordance with EU law only in so far as they were consistent with European Union (EU) law.
- In the Equality Act, 2010 (the 2010 Act), Parliament sought to implement the Directive specifically in relation to police officers. Section 42(1) deemed a constable to have been 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 of the 2010 Act conferred jurisdiction on an Employment Tribunal to determine any complaints relating to contraventions of Part 5 of the Act on work. Those provisions plainly conferred 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 have fallen within the scope of those provisions. That was 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).
- The problem was that the disciplinary functions in relation to police officers who had completed their period of probation, other than senior officers, were entrusted under secondary legislation to panels and the exercise of those functions by a panel was not an act done by either the chief officer or the responsible authority. Nor could the exercise of those functions generally have been 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) of the 2008 Regulation Act, bearing in mind that the panel exercised its most significant functions collectively and that at least those of its members who were police officers would not be employees.
- The panel could not have been regarded as exercising its disciplinary functions as the agent of the chief officer or the responsible authority within the meaning of section 109 (2) of the 2010 Act under the 2008 Regulations. The relevant powers were conferred directly on the panel in its own right. The consequence was that if section 42 (1) of the 2010 Act was read literally, it was deprived of much of its practical utility and it failed fully to implement the Directive, contrary to its purpose.
- The way to have resolved the problem was to have interpreted section 42 (1) of the 2010 Act as applying to the exercise of disciplinary functions by misconduct panels in relation to police constables. That ran with the grain of the legislation and was warranted under EU law as given domestic effect by the 1972 Act. Section 42(1) of the 2010 Act could have been interpreted conformably with the Directive if it was 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 overrode, by force of statute, any bar to the bringing of complaints under the Directive against the chief officer which might have otherwise arose by reason of any judicial immunity attaching to the panel under the common law.
- The conforming interpretation had to be understood broadly: the Court was not amending the legislation and the italicised words were not to be treated as though they had been enacted. The expressions misconduct meeting and misconduct hearing, for example, had not been defined by reference to the relevant regulations. The use of those expressions intended to exclude the adoption of a similar approach in relation to other types of panels if that was necessary in order to have complied with the Directive. The italicised words were merely intended to indicate how section 42(1) should have been interpreted in order to avoid a violation of EU law.
Per Lord Hughes concurring:
- The principle of judicial immunity serves a legitimate end and generally achieved 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 might well have been deep disappointment on the part of those who had not been successful in contested proceedings before the tribunal.
- The principle of judicial immunity also prevents most collateral challenges to the decisions of tribunals which had been set up, usually by legislation, with the task of making a final decision. The proliferation of litigation was not generally in the public interest which was best served by a single, final, decision after due process, appealable in the event of demonstrated error of law or principle.
- Section 42 (1) of the 2010 Act, conformably with the Framework Directive, was plainly meant to provide police constables with the right to complain to an Employment Tribunal of discrimination and had to be construed in the manner which it had been set out.
- It remained the consequence that in relation to discrimination there existed considerable potential for parallel or collateral proceedings in an Employment Tribunal and the statutory Police Appeals Tribunal. The former could grant relief relating to discrimination, but could not direct an alteration to the outcome of the disciplinary proceedings. The latter could not grant discrimination-related relief, and did not have the expertise of an Employment Tribunal in that area, although it could and should have considered any suggested discrimination when hearing an appeal against that outcome.
Appeal allowed, Appellant’s case remitted to the Employment Tribunal
Relevance to the Kenyan Situation
The Constitution of Kenya, 2010 provides for the right to equality in Article 27 under the Bill of Rights which states thatevery person is equal before the law and has the right to equal protection and equal benefit of the law.
Article 47 on fair administrative action provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
Section 87 of the National Police Service Act 11A of 2011 establishes the Internal Affairs Unit that deals with matters of police misconduct on its own motion or through complaints from the public. The unit can prefer disciplinary action against such an officer which may include interdiction, demotion and suspension.
Section 88 (3) of the same Act provides that a police officer who commits a criminal offence, as against law shall be liable to criminal proceedings in a court of law.
Just as it was decided in the United Kingdom Supreme Court so is the situation in Kenya since the decision of the Unit recommends the disciplinary actions to the Inspector General. Where the Unit recommends disciplinary action, it shall submit a copy of the recommendations to the Commission.
Further, the officer who is aggrieved by the decision of the Unit may appeal to the Employment and Labour Relations Court as was the case in Charles Kinanga Arumba v National Police Service Commission & another  eKLR, where the Court upheld the appeal and stated that, the services of the Kenyan Armed Forces had to be founded on principles of fairness, humaneness and justice.