P v Commissioner of Police of the Metropolis [2017] UKSC 65

A police officer with PTSD was dismissed after a misconduct hearing. The Supreme Court held that judicial immunity could not bar her Employment Tribunal discrimination claim under EU law, requiring section 42(1) of the Equality Act 2010 to be read conformably with the Framework Directive.

Facts

The appellant, P, was a serving police officer who was assaulted in 2010 and subsequently developed post-traumatic stress disorder (PTSD). In 2011, she was involved in an incident leading to her arrest, which she attributed to her PTSD. She faced a misconduct hearing under the Police (Conduct) Regulations 2008, conducted by a three-person panel. She admitted the misconduct (save for one factual issue resolved in her favour) and relied on her good record and PTSD in mitigation. On 12 November 2012, the panel dismissed her without notice.

P appealed unsuccessfully to the Police Appeals Tribunal and also instituted proceedings in the Employment Tribunal under the Equality Act 2010, alleging discrimination arising from disability, disability-related harassment, and failure to make reasonable adjustments. The Commissioner contended that the panel’s acts were protected by judicial immunity. The Employment Tribunal struck out her claim, and appeals to the Employment Appeal Tribunal and Court of Appeal were dismissed on the basis that the case was indistinguishable from Heath v Commissioner of Police of the Metropolis [2005] ICR 329.

Issues

The central issue was whether the enforcement of a police officer’s directly effective EU law right to equal treatment, by means of proceedings in the Employment Tribunal, is barred by the common law principle of judicial immunity where the allegedly discriminatory conduct is that of persons conducting a misconduct hearing.

Arguments

Appellant

P argued that her rights derive from Council Directive 2000/78/EC (the Framework Directive), which is directly effective and requires effective, proportionate, and dissuasive sanctions and judicial or administrative procedures for enforcement. National rules on judicial immunity could only apply consistently with EU law, and the Police Appeals Tribunal could not provide an equivalent or effective remedy.

Respondent

The Commissioner relied on Heath, contending that the panel members enjoyed judicial immunity at common law and that this was a procedural qualification consistent with EU law obligations, falling within the national margin of appreciation.

Judgment

The Supreme Court (Lord Reed giving the leading judgment, with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hughes agreed) allowed the appeal and remitted the case to the Employment Tribunal.

Lord Reed held that EU law must be the starting point. 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)). Article 9(1) requires the availability of judicial or administrative procedures, and article 17 requires effective, proportionate and dissuasive sanctions. National procedures must comply with the principles of effectiveness and equivalence, and with the right to an effective remedy under article 47 of the Charter.

The principle of equivalence required that police officers be able to bring discrimination claims before Employment Tribunals, which are the specialist forum for analogous domestic claims. The Police Appeals Tribunal lacked the expertise and remedial powers (e.g., declarations, compensation, recommendations) of an Employment Tribunal. The Court rejected the reasoning of the Court of Appeal in Heath on the EU law issue, holding that national rules of judicial immunity could be applied only insofar as they were consistent with EU law, citing Köbler v Austria (Case C-224/01) and Commission v Italy (Case C-379/10).

The Court identified a problem in domestic implementation: section 42(1) of the Equality Act 2010 deems holding the office of constable as employment by the chief officer or responsible authority only in respect of acts done by those persons. The misconduct panel’s acts were not acts of the chief officer, nor done in the course of an employee’s employment under section 109(1), nor as agent under section 109(2). Read literally, section 42(1) failed fully to implement the Directive.

Applying the conforming interpretation principle from Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89), Lord Reed held that section 42(1) should be read as if it included additional words extending its scope to acts done by persons conducting misconduct meetings or hearings (so far as falling within the Framework Directive). So interpreted, the Act overrides any common law judicial immunity bar to bringing complaints under the Directive against the chief officer.

Lord Hughes added a concurring judgment recognising the legitimate purpose of judicial immunity in protecting tribunal members and witnesses and preventing collateral challenges, but agreed the legislation must be construed conformably with the Directive. He noted the resulting potential for parallel proceedings in the Employment Tribunal and Police Appeals Tribunal, observing this was an unavoidable division of justiciability that might warrant legislative review.

Implications

The decision clarifies that directly effective EU law rights to equal treatment cannot be defeated by common law principles such as judicial immunity where to do so would deprive a claimant of an effective and equivalent remedy. Police officers subject to discriminatory treatment by misconduct panels can bring claims before the Employment Tribunal, with section 42(1) of the Equality Act 2010 being read in a conforming manner to encompass acts of misconduct panels falling within the Framework Directive.

The judgment expressly overturns the reasoning in Heath insofar as it concerned EU law. It demonstrates the breadth of the Marleasing-style conforming interpretation, with Lord Reed emphasising that the conforming reading must be understood broadly and is not a literal amendment of the legislation.

The decision is significant for police officers in particular, but also illustrates the wider principle that domestic procedural or jurisdictional rules must yield to EU law where necessary to give effect to directly effective rights. Lord Hughes’ observations highlight a structural inconvenience in the legislative scheme – parallel jurisdictions between the Employment Tribunal and the Police Appeals Tribunal – which may merit future legislative attention.

Verdict: Appeal allowed. The appellant’s case was remitted to the Employment Tribunal. The Supreme Court held that the reasoning in Heath v Commissioner of Police of the Metropolis in relation to EU law was unsound, and that section 42(1) of the Equality Act 2010 must be interpreted conformably with the Framework Directive to permit complaints against acts of misconduct panels, notwithstanding any common law judicial immunity.

Source: P v Commissioner of Police of the Metropolis [2017] UKSC 65