The Supreme Court has held in P v Commissioner of Police of the Metropolis [2017] UKSC 65, that police misconduct hearings no longer benefit from judicial immunity in respect of discrimination claims. They also held that the Chief Constable is vicariously liable for the discriminatory acts of such panels. However, the decision related to an internal panel under the old regime when a misconduct hearing panel was chaired by an assistant chief constable. Three awkward issues arise: 

- Whether its reasoning applies to panels chaired by a Legally Qualified Chair (‘LQC’) under the new regime; 

- If so, whether the Chief Constable is legally responsible for the acts of an independent panel or whether the LQC and the other members of such panels would be liable as a panel;

- If the LQC and panel members are potentially liable in damages in their own names, regardless.

The Equality Act 2010 has its own rules on vicariously liability, which differ from the common law 'close connection' test. The standard route to establishing this statutory liability is the existence of an employer-employee or principal-agent relationship. However, the Supreme Court could not fit the chair of a misconduct hearing panel under the old regime into either of these relationships. The way to resolve the problem, it held, was to interpret section 42(1) of the Equality Act 2010, not a vicarious liability provision but one that brings police officers into the realm of the Equality Act 2010, as applying to the exercise of disciplinary functions by misconduct panels in relation to police constables: see paragraph [33].

This was premised on the principle of supremacy of EU law. Judicial immunity could not apply because the Framework Directive was a directly effective provision of EU law, which gave officers the right to make various claims of discrimination in relation to certain protected characteristics. The common law rule of judicial immunity had to be set aside in order to give effect to those rights. For this reason, judicial immunity still exists in relation to allegations of unfair treatment due to whistleblowing because that legislation does not represent the implementation of EU law.

Accordingly, the Supreme Court required that section 42(1) be interpreted ‘conformably’ with the Framework Directive, by reading in certain additional words, italicised below:

(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 far, so straightforward. That would mean that the Chief Constable would be the Respondent to a claim in respect of a misconduct hearing panel chaired by one of his Assistant Chief Constables (or the chief himself if a special-case hearing). The chair would then also be a potential witness (and possibly a separate respondent) in any discrimination action.

The rub is that the misconduct hearing to which the Supreme Court referred in its additional wording was materially different to what it is now.

The Supreme Court decision was litigated at a time when a misconduct hearing panel was chaired by an assistant chief constable. It was commonly understood that the ACC acted with the delegated authority of the Chief. When a judicial review was brought against the decision of a misconduct hearing panel, the defendant was the chief constable of that force: see R (Gannon) v Chief Constable of Merseyside [2009] EWHC 2133 (Admin) and R (Evans) v Chief Constable of Sussex [2011] EWHC 2329 (not available on Bailii or ICLR).

Now, however, the panels are very different beasts. The chair is now a Legally Qualified Chair – an independent lawyer appointed to a panel for that purpose by the relevant Police and Crime Commissioner. That will often, although not always, be a barrister or solicitor who practises in criminal law (with limited experience of employment and discrimination law). One panel member will be an independent lay member. Only one panel member will be a police officer – and that person could be a superintendent from a different force. The proposition, therefore, that the chief constable should be vicariously liable for a panel wholly independent of him and over which he exercises no control is, therefore, a strange one. Furthermore, the High Court has recognised that new-style misconduct hearing panels have a legal identity separate to the chief constable of the force in respect of whose officer the panel sits: see Chief Constable of Thames Valley v Police Misconduct Panel [2017] EWHC 923 (Admin) (McGowan J) and the blog post here.

Who, then, is likely to be the correct respondent in a discrimination action arising from or involving a misconduct hearing? On one analysis, the correct respondent would still be the chief constable. The chief appoints the members of the misconduct hearing panel pursuant to reg 25(4) of the Police (Conduct) Regulations 2012 (no updated version is available freely online). The reasoning of the Supreme Court in P  would, therefore, apply mutatis mutandis to the new-style panels (see paras 32-33).

That could, of course, mean the chief constable’s being liable for a decision of a misconduct hearing panel over which he has no authority or control and in respect of a specific act or ruling which he, through counsel, may actively have opposed. It may also result in his declining to support the decision of the panel – with all the public policy mischief that may cause. Even worse, the chief may find himself defending an action in respect of a misconduct hearing that he never wanted to hold but which the Independent Police Complaints Commission directed be held.

Conversely, where the chief wished to defend such an action, he might consider it necessary to call the LQC as a witness to give evidence at the employment tribunal, who would then have to be cross-examined by the (possibly dismissed and so now ex-) officer’s counsel. Where the LQC or panel member are reluctant to attend, the chief would have to secure their attendance by way of a witness summons. The spectacle of a chief constable forcing an independent LQC to be a witness in the chief's defence not what anyone would have expected hitherto.

On another analysis, the correct respondent could be the panel itself, which might then have to defend the litigation – although how it would do so and who would make the decisions given its being composed of three members is, for the moment, anyone’s guess – especially if the LQC disagreed with the decision but was outvoted by the two other panel members. At present, reg 35(15) of the Police (Conduct) Regulations 2012 prohibits the misconduct hearing from stating whether any decision was unanimous or by majority. That information may become disclosable in an action. As might each individual panel member’s notes of the hearing in any event.

That said, even if the primary respondent is the chief constable, it may still be possible for a claimant to name the individual members of the misconduct hearing panel as individual respondents in their own right. If so, who would fund those members’ defences and/or meet the judgment is a matter to be considered.                                    

One should also not leave out the Police Appeals Tribunal (‘PAT’). Where an ex-officer contends that the PAT has discriminated against them – it remains a possibility that the chief constable of the force may be liable in respect of that. Unlike a misconduct hearing, however, the chief does not appoint the PAT. The same point above in respect of the panel’s being responsible in its own right – in addition to that of its individual members – may, therefore, further apply to the PAT.

As Lord Hughes’ supplementary judgment suggests, these difficulties may be the result of the existence parallel procedures for police officers under the statutory misconduct scheme (in respect of misconduct) and in the Employment Tribunal (in respect of discrimination) with the corresponding potential for collateral proceedings to be brought in either jurisdiction. Regardless, at some point, a claim will arise and the force will have to consider whether to run the point that when the Supreme Court referred to a “misconduct hearing”, it was strictly to a misconduct hearing as was and not the new style hearings which have independent legal personality. Until then, LQCs and independent lay members (and possibly PAT members) would be well advised to check the basis on which they continue to be indemnified (if at all) in respect of any legal proceedings arising from their decision and to ensure that their training in relation to equal opportunities, and in particular their positive obligations under the disability provisions of the Equality Act 2010, is up to date.

We will be sending out an article shortly out the practical implications of the judgment for those chairing and conducting misconduct panel hearings next week.