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The question of how misconduct proceedings should address allegations of discrimination or harassment has now been the subject of a handful of High Court decisions. What falls from them is the importance of the misconduct allegations setting out the specific heads of discriminatory behaviour said to have been committed, whether such conduct is deliberate or accidental, and the effect of such behaviour. This blog post reviews those cases and their relevance to how future misconduct proceedings are presented, defended and determined.

To start – the legal definitions of discrimination:

- Direct discrimination is treating a person less favourably than another because of a protected characteristic: Equality Act 2010 (EqA) s13;

- Harassment is the engaging in unwanted conduct related to a protected characteristic that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them: EqA s26;

- Victimisation is subjecting someone to a detriment for performing a protected act (any thing done for the purposes of or in connection with the EqA): Eqa s27;

- The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation: EqA s4.

The Code of Ethics says of the Standard of Professional Behaviour of “Authority, Respect and Courtesy” that a person must ensure that their “behaviour and language could not reasonably be perceived to be abusive, oppressive, harassing, bullying, victimising or offensive by the public or [their] policing colleagues.” The standard of “Equality and Diversity” states that “Police officers act with fairness and impartiality. They do not discriminate unlawfully or unfairly” [emphasis added]. This is therefore wider than unlawful discrimination and may extend to any discriminatory behaviour which is unfair. The IPCC Guidelines for Handling Allegations of Discrimination states, at para 1.3, that where discrimination is alleged, it will often be appropriate to consider both standards but, at para 1.4, if the matter concerns discrimination then the equality and diversity standard will always be appropriate to consider and is the focus of the guidance.

The issue of discrimination is treated differently to nearly all recordable conduct matters or complaints that have to be referred to the Independent Office of Police Conduct (IOPC). A complaint or a conduct matter must be referred to the IOPC where it involves death or serious injury or, pursuant to the Police (Complaints and Misconduct) Regulations 2020 reg 4 / reg 7, a serious assault, serious sexual offence or serious corruption as defined in the IOPC Guidance, and a criminal offence or behaviour which is liable to lead to disciplinary proceedings and which is aggravated by discriminatory behaviour on the grounds of a person’s race, sex religion or other status as stated the IOPC Statutory Guidance (which are the protected characteristics in the Equality Act 2010). Conduct may be referred where it is of such gravity or other exceptional circumstances as make it appropriate to do so.

The matters that must be referred will invariably amount to gross misconduct – save the category relating to discrimination. That is, a matter must be referred to the IOPC where it concerns behaviour liable to lead to disciplinary proceedings (which includes a misconduct meeting for misconduct simpliciter) and which is aggravated by discrimination on the grounds of a person’s protected characteristics. Although it has been held that the words “on grounds of a person’s [protected characteristic]” has been held not to include victimisation rather than direct discrimination and possibly harassment, the failure of a police force to refer such matters to the IOPC voluntarily was the first step in a chain of errors that resulted in an entire conduct investigation being declared a nullity – see R (Deputy Chief Constable of Kent Police) v Chief Constable of Kent Police [2020] EWHC 2099 (Admin).

If such matters reach a misconduct hearing, it is advisable to use the statutory definitions of discrimination, harassment, or victimisation etc, in the wording of the allegations themselves. The case of R (Chief Constable of Dyfed Powys Police) v (1) Police Misconduct Tribunal (2) PC England [2020] EWHC 2032 (Admin); [2020] IRLR 964 concerned allegations that a male officer had made comments laced with sexual innuendo to male and female officers and had touched a female officer in a manner which amounted to sexual harassment. The definition of harassment, as stated in the EqA, was written into the misconduct charges – which stated:

Your actions described above … amounted to:

(i) Unwanted conduct or unwanted conduct of a sexual nature;

(ii) Conduct which had the purpose or effect of violating the dignity or creating an intimidating hostile, degrading, humiliating or offensive environment for the officers you were with and for officers in general;

(iii) A failure to act with self-control and respect towards your colleagues.

The meaning of harassment is described in the IPCC Guidelines for Handling Allegations of Discrimination and the Equality and Human Rights Commission Statutory Code of Practice. The latter makes clear in chapter 7:

- Unwanted behaviour covers a wide range of behaviour, including spoken or written words, abuse, imagery, gestures, expressions, mimicry, jokes and others;

- Unwanted conduct means conduct that is unwelcome or invited, which does not require express objection be made to it;

- The conduct does not have to be directed at any particular person for someone to be affected by it or to have the protected characteristic concerned – eg. a man or woman may find sexist comments about women to be offensive;

- The requirement is that the conduct have the purpose “or” effect – so a person may engage in harassment regardless of their intended purpose;

- In deciding whether conduct has the adverse effect, what must be taken into account is the perception of the complainant, all the circumstances of the case and whether it is reasonable for the conduct to have that effect.

In R (Chief Constable of Dyfed Powys Police) v (1) Police Misconduct Tribunal (2) PC England, the police misconduct hearing panel found that the officer had acted as alleged but that this was not sexual and was not intended to be sexual. The High Court, at [71], held that to be irrational and perverse. It said, at [67], that the police misconduct panel had failed to ask itself whether the evidence demonstrated that “the [officer’s] behaviour had, in the language of the charge, ‘amounted to unwanted conduct or unwanted conduct of a sexual nature’… and… whether his conduct ‘had the purpose or effect of violating the dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment’”. It further said, at [68], that a police misconduct hearing should assess the events as a whole if the misconduct charges invited it to do so, to appreciate whether the behaviour amounted to harassment as part of a larger course of conduct, and, at [70], that it should have focussed on how the officer’s conduct made others feel, rather than his own intentions, when considering whether his conduct was sexual.

Other cases have considered the seriousness of such behaviour, depending upon its content, quality and whether or not it was deliberate. The matter of R (Chief Constable of Northumbria) v (1) Police Appeals Tribunal (2) Barratt [2019] EWHC 3352 concerned the use of racist words. An off-duty probationer constable, after a night-out with police colleagues, called staff in a take-away “fucking Pakis” and “fucking niggers”. She used the term “Pakis” on at least five occasions including when stating, “I wish these Pakis would hurry up with my pizza.” The misconduct hearing held that Ms Barratt had acted out-of-character when using these words, referred to it as “unconscious discrimination” and then dismissed her. The Police Appeals Tribunal reinstated her, which the Chief Constable challenged.

The High Court held, at [43], that “where there is conscious or deliberate use of discriminatory language, this will always undermine public confidence. However, where it is unconscious, it can also have a significant effect on public confidence” [emphasis added]. Here, although the words were unconscious, they were, at [56], a “whole volley of expressions [that] contained vile, offensive and racist language”; it was “not a word used inappositely or just an odd word that slipped out”. As such, there was only one appropriate sanction – that of dismissal.

Of note, Ms Barratt submitted that her behaviour was not discrimination within the meaning of the EqA s13 – direct discrimination. The High Court considered this point to be irrelevant, holding that the word discrimination in the decision of the misconduct hearing panel “[did] not refer to an act of discrimination in the sense that would offend the Equality Act 2010. It is not to prefer one person or class of persons over another. It is a reference to discriminatory language.” With respect to the judge, this is only partly correct. It could have met the definition of less favourable treatment at EqA s13 if Ms Barratt had used racist language and expletives because of the staff members' race or national origins and/or where she would not have spoken that way towards staff who were of a different race or national origin. It would certainly have met the statutory definition of harassment at EqA s26. However, it would not have been unlawful contrary to the EqA because Ms Barratt was not on duty at the time – so she had not acted in this way in the course of performing a public function pursuant to EqA s29, or at work contrary (arguably) to EqA pt 5.1

The distinction between intended and unintended conduct is therefore important to make clear - whether in the misconduct allegations or an opening note. A deliberate and conscious use of discriminatory language, even if a single word, will undermine public confidence whereas an unconscious use of it will still be serious but may be less so. In R (Chief Constable of Avon and Somerset) v (1) Police Misconduct Tribunal (2) PC Archer [2021] EWHC 1125 (Admin), a member of police staff overheard a police officer speaking about her partner who was sunbathing at home. The officer joked with a colleague that her partner had olive skin and would end up looking like a “nig nog”.

The misconduct allegation did not allege that the officer used these offending words deliberately as part of a racist joke rather than that she said them. It also did not reproduce the definition of harassment in the alleged breaches. The officer admitted the misconduct charges as drafted, stating that she had used the offending words unintentionally. There was a possible conflict in that the staff member said that PC Archer had lowered her voice to say just the offending words, whereas the officer had said that she had used a low voice for the whole of the remark because of the sensitivity of her partner’s nude sunbathing.  

The misconduct hearing panel held that the officer’s conduct amounted to gross misconduct, that it did not amount to discrimination for the purposes of the EqA, and that it merited a final written warning rather than dismissal. It made no mention of harassment. The chief constable challenged the decision by judicial review, stating that there was an unexplored factual conflict as to whether the officer had used the words deliberately, that the legally qualified chair had failed to call the complainant as a witness on this issue (even though he had submitted that she need not be called), that the finding the officer had used the words unintentionally was irrational and that, in consequence, the decision on disciplinary outcome was reached on an incorrect basis.

The High Court dismissed the claim. It considered it notable that the misconduct allegations made no reference to the officer's lowering her voice to say just the offending words, that she had done this deliberately, and that this “was not a matter on which PC Archer was questioned in interview, nor was it a matter that was even referred to in the regulation 21 notice or the Chief Constable’s Opening Note” [emphasis added]. It did not address squarely whether the legally qualified chair had a duty to ensure that the case was more fully presented per Council for the Regulation of Health Care Professionals v (1) General Medical Council (2) Ruscillo [2004] EWCA Civ 1356; [2005] 1 WLR 717 and Professional Standards Authority for Health and Social Care v (1) Nursing and Midwifery Council (2) Jozi [2019] EWHC 2819 (Admin) – likely because it was not persuaded that this was appropriate on the facts of the case.

On severity, the High Court found, at [108], that the behaviour of the officer did amount to harassment but that the misconduct hearing panel had not addressed it “because this was not raised”. As such, the judge held, at [110], “I do not consider that the [Police Misconduct] Tribunal had erred in making no such finding in circumstances where the regulation 21 notice made no allegation of harassment, nor was any such allegation made at any stage of the hearing…” That said, the court found that in the absence of it having been put that PC Archer spoke the offending words deliberately, it was “highly likely” that the misconduct hearing would have imposed the same disciplinary outcome in any event. It fell, therefore, into the description stated in R (Chief Constable of Northumbria) v (1) Police Appeals Tribunal (2) Barratt, of a word used inappositely; an odd word that that ‘slipped out’.

By contrast, the High Court quashed a final written warning given to an officer who had used racist words and demonstrated racist attitudes in R (Chief Constable of West Midlands Police) v (1) Panel Chair (2) Police Misconduct Panel (3) Officer A [2020] EWHC 1400 (Admin). Officer A had described three Asian officers as "gangsters" and said, “… take this as a racist fucking comment if you like I don’t care mate. When they start moving in streets they all live together. They don’t want fucking amalgamating, mix with other people. When they work together, they don’t want to work, mix… They’ll form their own clan.” The officer then impersonated an Asian speaker. The breach of professional standards was said to be that the officer’s conduct “created an environment where it was acceptable for others to use and participate in racist, abusive, inappropriate, derogatory and offensive comments.”

The misconduct hearing panel held the behaviour to amount to gross misconduct but imposed a final written warning, noting that the conduct was not pre-meditated, that it was limited to a single episode of relatively short duration, that it occurred in circumstances where the officer was under stress due to the level of work and the absence of effective supervision, and that there was genuine remorse. 

The High Court held, at [59]-[63], that when reaching its decision on disciplinary outcome, the misconduct hearing had failed to demonstrate that it had considered both the reputational harm to the police of such conduct and the actual harm suffered by BAME officers in the force. In particular, there was evidence of the impact on Officer A’s conduct on other colleagues within the unit. Although the panel acknowledged that the officer’s words “were likely to prolong the toxic culture in the unit”, it did not engage with the actual harm done to the BAME officers who had learned of them. At [64], the court held that the panel’s finding that this resulted from the officer’s being “provoked” was irrational, observing that no reasonable panel could have found that the officer had been “provoked” into using racist stereotypes or mimicking accents amounting to racist behaviour. It further held that the panel’s decision focussed almost entirely on the perspective of Officer A rather than the broader, public-oriented concerns to which it was required to have regard. It remitted the decision on outcome to a fresh panel.

Conclusions

A number of points flow from the above cases:

- The misconduct allegations should set out clearly what type of discriminatory behaviour is being alleged. Insofar as the Standard of Professional Behaviour of Equality and Diversity refers to unlawful and unfair discrimination, it is advisable for those allegations to adopt the wording of either the relevant provisions of the Equality Act 2010 or the relevant provisions of the force’s own bullying / harassment / discrimination policy. They can also reproduce the wording of the Code of Ethics' explanation of the standard of Authority, Respect and Courtesy, but this is slightly different and does not necessarily explain what the terms themselves mean. The presenting authority should also make clear, either in the misconduct allegations or in an opening note, whether and in what respect it is contended that the behaviour is deliberate.

- A misconduct hearing panel should ask itself whether the officer’s behaviour amounts to what the specific misconduct allegations state. Where the misconduct allegations aver that an officer’s conduct has had an adverse effect on other individuals, the panel should focus on how such behaviour made the complainants feel rather than on the intention of the offending officer. In deciding whether and/or to what extent any conduct has had an adverse effect, the panel should take into account the perception of the complainant, the other circumstances of the case and whether it is reasonable for the conduct to have had that effect. That may require the panel to consider the evidence as a whole and whether it demonstrates a course of conduct – where an act may not be discriminatory taken alone but is when taken together with other behaviour. 

- However, when assessing the severity of such behaviour, a misconduct hearing panel should also consider whether the officer’s behaviour was deliberate or unconscious. Deliberate or conscious discriminatory behaviour will be particularly serious – the Misconduct Outcomes Guidance says, at para 4.53, that in such circumstances the public will be unable to have confidence that the officer will discharge their duties in accordance with the Code of Ethics. Unconscious discriminatory behaviour, at para 4.54, may not automatically have the same level of seriousness as conscious discriminatory behaviour – but it can also be serious and have a significant impact on public confidence.

- When considering the harm that arises from the conduct for the purposes of disciplinary outcome, a misconduct hearing panel should consider both the reputational harm to the force and any actual harm that others have suffered. There may be harm to those who are not the subject of the conduct. Where an officer engages in racist, sexist or homophobic behaviour, officers who do not share the particular protected characteristic may still feel offended by it. For example, where a male officer tells a sexist joke to another officer, whether male or female, other male and female officers in the force may consider that the tolerance of such behaviour or the knowledge that this is considered acceptable behaviour itself creates an intimidating, hostile, degrading, humiliating or offensive working environment for them.  

- Misconduct hearing panels should take care in ascertaining what points should form its decision on misconduct finding and what should form the decision on disciplinary outcome. The decision on finding should identify those facts that the panel has found, including the extent to which behaviour was or was not deliberate, and whether (if amounting to a breach of the Standards of Professional Behaviour) this is behaviour that could justify dismissal. The detail of such a decision should be concerned with the findings of fact relating to the misconduct allegations. Insofar as the panel must ask itself whether such behaviour could justify dismissal, it need not (and should not) make detailed findings as to the specific degrees of culpability and harm. That is more properly part of the decision on disciplinary outcome, which requires such detailed findings to be made on culpability, harm, aggravating and mitigating factors.

In light of the unacceptability of discriminatory behaviour becoming more widely recognised in the collective public conscious, it is likely that more such cases will be presented to misconduct hearing panels. All participants in misconduct proceedings, whether investigators, lawyers or panel members will need to be familiar with the principles of discrimination, the different types of discriminatory activity, and how they should be considered. 

Elliot Gold acted for the deputy chief constable and chief constable in R (Deputy Chief Constable of Kent Police) v Chief Constable of Kent Police [2020] EWHC 2099 (Admin); the chief constable in the case of R (Chief Constable of Dyfed Powys Police) v (1) Police Misconduct Tribunal (2) PC England [2020] EWHC 2032 (Admin); [2020] IRLR 964 and the chief constable in the case of R (Chief Constable of Avon and Somerset) v (1) Police Misconduct Tribunal (2) PC Archer [2021] EWHC 1125 (Admin). He is also acting for the chief constable in the case of Chief Constable of Avon and Somerset v Eckland [2021] UKEAT 012_20_1802; UKEAT/0123/20/JOJ – currently on appeal to the Court of Appeal, on who should be liable for discrimination in a misconduct hearing and in what jurisdiction.

Twitter @EGoldLdn

 

1 The EqA s42(1) failed to re-enact the provisions of previous anti-discrimination provisions that the holding of the office of constable be treated as employment by the chief officer of police and that anything done by a person holding such an office in the performance or purported performance of their functions should be treated as done in the course of that employment. Absent a purposive construction pursuant to Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135, this could mean that where officers acted other than as the chief constable’s agent, their engaging in harassment towards another officer might not be unlawful – see Chief Constable of Avon and Somerset v Eckland [2021] UKEAT 012_20_1802; UKEAT/0123/20/JOJ (on appeal to the Court of Appeal).