The claimant was alleged to have lied to a Crown Court in their evidence and this led to an investigation.  The investigation was carried out by the Independent Office for Police Conduct subsequently leading to misconduct proceedings.  Misconduct proceedings for Police officers are regulated by the Police (Conduct) Regulations 2012.  

After the investigation and misconduct hearing it was found by the independent panel appointed by the Chief Constable that the officer should be dismissed on the grounds of gross misconduct.  The claimant outlined that he had been suffering from a mental health condition at the time and subsequently brought a disability discrimination claim on that basis.   The Chief Constable contended that the Tribunal had no jurisdiction in relation to the claim because she had no legal responsibility for the independent panel, to which the discriminatory claims were against.  The Tribunal, at first instance, held that the Chief Constable could be liable and was the correct respondent.  There was reference to the case of P v Commissioner of Police of the Metropolis [2017] where the Supreme Court held that regardless of the independence of misconduct panels for police officers, the Chief Constable/Chief Officer would be liable for any discrimination claims arising therefrom.  There was to be no issue of judicial immunity. The EAT upheld that decision and the Chief Constable appealed to the Court of Appeal. 

The principal argument of the Chief Constable was that the case of P could be distinguished on the basis that it related to the 2008 Regulations whereas this case related to the 2012 Regulations as amended. The Court of Appeal held that under the 2008 Regulations it already placed misconduct panels on an independent footing from the Chief Officer.  The reason the Chief Officer was liable also arose in relation to EU law to ensure that there was an effective remedy.  This reasoning was held to apply to the new regulations which retained the need for an independent misconduct panel.  The second argument was that the Supreme Court had incorrectly assumed that there was no other available remedy in these types of cases. 

The Chief Constable argued that there could be a remedy against the panel directly for unlawful discrimination.  This was refused by the Tribunal on the basis of the need for ‘equivalence’ as the unlawful discrimination claim would have to be brought in the County Court rather than the index case which came through the Employment Tribunal.   The Court of Appeal noted that there were clear differences such as the Tribunal having expertise in discrimination in employment fields as well as how costs and fees work in each system.  Furthermore, it was regarded as being ‘unsatisfactory’ that the individual panel members would be regarded as being potentially liable when the issue of costs and the need for professional indemnity insurance was taken into account.  Accordingly, the appeal was dismissed. 

Practical Lessons

This case demonstrates the extent to which the Court is reluctant to allow liability to be avoided when there is an independent panel in place.  At the Court of Appeal this was largely seen through a forensic legal lens by examining the differences between actions in the Tribunal and in the County Court.   It is clear that the Tribunal is better suited to deal with such claims and that it would be illogical to expect actions to arise individually against independent panel members when that panel has been established by the Chief Constable.   
https://www.bailii.org/uk/cases/UKEAT/2021/0123_20_1802.html