Appeal No. UKEAT/0437/06/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
On 22 November 2006

Before
THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)
(SITTING ALONE)

MR K HASAN	APPELLANT

COMMISSIONERS OF POLICE OF THE METROPOLIS	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr David Massarella
(of Counsel)
Instructed by:
Messrs Deighton Guedella
Solicitors
Top Floor
30/31 Islington Green
LONDON
N1 8DU	
For the Respondent	Mr Peter Edwards 
(of Counsel)
Instructed by:
Metropolitan Police Service
Legal Services
Wellington House
67-73 Buckingham Gate
LONDON
SW1E 6BE	

SUMMARY

Employment Tribunal held that the dismissal of a probationer pursuant to regulation 13 of the Police Regulations 2003 attracted absolute immunity and therefore precluded the claimant bringing a claim for race and/or religious discrimination arising out of the decision to dismiss dispense with his services.  The EAT held that the Tribunal was in error.  The doctrine was inapplicable to this decision because the procedure adopted was not sufficiently similar to that adopted in a court of law.  Decisions of the House of Lords in Trapp v Mackie [1979] 1WLR 377 and of the Court of Appeal in Heath v Commissioner of Police for the Metropolis [2005] ICR 329 considered.

THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1.	Mr Hasan was a probationary police constable. He was appointed in August 2003 but in March 2005, shortly before he was due to be confirmed in his post, internal proceedings were instituted against him pursuant to regulation 13 of the Police Regulations 2003. This led to a decision to dispense with his services, which was taken on 4 August 2005. That decision was taken by Assistant Commissioner Godwin.

2.	On 19 August Mr Hasan instituted proceedings for various acts of racial and religious harassment and discrimination. In part, these related to a period of time he spent at the Hendon Training College when he first became a probationer, but in addition there were allegations about his treatment at his first posting, which was in Kensington & Chelsea. 

3.	More specifically, his claim form contained two specific allegations. The first was that the decision to institute regulation 13 proceedings itself and the subsequent decision to dismiss him- dispense with his services in the language of the regulation- amounted to direct discrimination and/or victimisation discrimination contrary to the Race Relations Act and/or the Employment Equality (Religion or Belief) Regulations 2003.

4.	There was a pre-hearing review before the Tribunal chairman sitting in London Central who found that certain complaints were out of time and others were potentially in time. In relation to the regulation 13 proceedings, the chairman held that the Tribunal had no jurisdiction to hear the claim in so far as it related to the decision to dismiss on the grounds that the proceedings before Assistant Commissioner Godwin were sufficiently judicial to attract the common law protection of absolute immunity. The effect of that doctrine is to preclude any civil proceedings being taken in relation to the decision to dispense with Mr Hasan’s services. Mr Hasan now appeals against that specific conclusion.

5.	There was some uncertainty as to whether the Tribunal had also found that the immunity extended to the decision to initiate the regulation 13 proceedings. I do not think it did.  In any event, Mr Edwards, counsel for the respondent, accepts that the immunity would not apply to that decision and  I need say no more about it. 

The Law
6.	The 2003 regulations deal with various aspects of the service of police officers. Regulation 13 is contained in part 2, which is headed ‘Government’. The relevant parts of the regulation applicable to this case are as follows: 

“13. – (1) Subject to the provisions of this regulation, during his period of probation in the force the services of a constable may be dispensed with at any time if the chief officer considers that he is not fitted, physically or mentally, to perform the duties of his office, or that he is not likely to become an efficient or well conducted constable.
(2) A constable whose services are dispensed with under this regulation shall be entitled to receive a month’s notice or a month’s pay in lieu thereof.”  

7.	Sub-sections 3 and 4 provide that a constable can avoid any stigma resulting from the dispensation of his services by retiring at any time before the date when his services are to be terminated. They secure that he can do that without any adverse financial consequences.

8.	The regulations indicate that the decision is to be taken by the chief officer.  It is not in issue that this encompasses the Assistant Commissioner to whom these powers can be delegated: see s.9F(5) of the Police Act 1996.  The procedure which is to be adopted is not laid down in any regulations but is the subject of an internal police document directed to managers. The following is a very brief summary. First, if weaknesses are identified an action or development plan should be adopted to assisting the probationer to improve; a case conference should be held to review progress and identify specific areas of weakness; if problems remain a second case conference is called at which a regulation 13 notice may be formally served; and four weeks later there should be further review of performance.  If at that stage it is considered that the officer may not become an efficient and well-conducted constable then a report with all relevant documentation should be sent to a more senior officer.  He or she will in turn consider the documentation, consider any representations from the probationer, and decide whether or not to recommend that his services should be dispensed with.  That recommendation is considered by the appropriate Assistant Commissioner. Representations may be made in person or in writing to that officer before the final decision is made.

9.	The way in which the Assistant Commissioner reached his decision in this case can be gleaned from the letter he sent dispensing with Mr Hasan’s services: 

“Today I have reviewed your case under Regulation 13 of Police Regulations 2003. I have considered written material provided by the Royal Borough of Kensington and Chelsea as well as material from the Directorate of Professional Standards (DPS) regarding your disciplinary history and on-going investigations. I have also considered an e-mail submission sent on your behalf …”

It is plain from the documentation accompanying the letter that the officer considered both Mr Hasan’s disciplinary record, including established or admitted acts of misconduct, and issues going to performance.  

The doctrine of absolute immunity.
10.	The doctrine of absolute immunity is now clearly established as part of the common law. It applies to judicial proceedings and other proceedings which are closely akin to them. The issue in this case is whether regulation 13 proceedings attract that immunity.

11.	Two cases are of central importance in analysing this doctrine. The first is the decision of the House of Lords in Trapp v Mackie [1979] 1 WLR 377. In Trapp the appellant was dismissed from his post as the headmaster of a Scottish school. A local enquiry was conducted before a commissioner appointed by the Secretary of State under s.81 (3) of the Education (Scotland) Act 1946. The commissioner was given a wide discretion as to the procedure to be adopted.  The respondent, Mr Mackie, gave evidence in the course of those proceedings. The appellant alleged that the evidence had been maliciously false. The question arose whether the doctrine of absolute immunity precluded any civil proceedings for libel being commenced against the respondent. The House of Lords held that it did.

12.	They concluded that the procedure adopted was indistinguishable from that of a court trying a contested civil action. That was so, even although the commissioner’s conclusion was not binding on the Secretary of State. 

13.	Lord Diplock, with whose judgment Lords Simon, Edmund Davis and Russell agreed, noted that the principle of absolute immunity was a rule of law, established from earliest times, and based on public policy. It applied not only to courts but also to “tribunals which, although not courts of justice, nevertheless act in a manner similar to that in which courts of justice act.” After considering certain of the authorities which had analysed whether particular tribunals fell within or outwith the scope of the doctrine, and having noted that the question whether an inquiry or tribunal fell one side of the line or the other was “not capable of very precise limitation”, Lord Diplock continued (p.379): 

“No single touchstone emerges from the cases; but this is not surprising for the rule of law is one which involves the balancing of conflicting public policies, one general: that the law should provide a remedy to the citizen whose good name and reputation is traduced by malicious falsehoods uttered by another; the other particular: that witnesses before tribunals recognised by law should, in the words of the answer of the judges in Dawkins v Lord Rokeby LR 7HL 744,753  “give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice”.

14.	 Lord Diplock then identified four considerations which a court ought to take into account when determining whether the doctrine was applicable or not:

“So, to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly, the nature of the question into which it is its duty to enquire; thirdly, the procedure adopted by it in the carrying out of the enquiry; and fourthly, the legal consequences of the conclusion reached by the tribunal as a result of the enquiry.”

15.	Lord Diplock then pointed out, in connection with the first consideration, that it is fundamental that the Tribunal should be “recognised by the law”. That is, it must be constituted or recognised by some Act of Parliament and not be simply a domestic Tribunal. In the circumstances of the particular case, His Lordship concluded that the nature of the question which the Tribunal had to determine, namely whether the dismissal was reasonably justified, amounted to a lis inter partes being “an issue between the dismissed teacher and the education authority no different from the kind of issues between pursuer and defender that daily form the subject matter of civil suits in courts of justice”; that the procedure was very closely akin in that case to that which would be adopted in a court of law; and that although the determination was not in law binding upon the Secretary of State, in practice it had that effect.  In all he identified ten characteristics which the procedure shared with that adopted by a court of law.  Accordingly, it was held that the evidence given by Mr Mackie did attract the privilege of absolute immunity.

16.	The Court of Appeal has more recently had to consider this doctrine in the context of a sex discrimination claim in Heath v Commissioners of  Police of the Metropolis [2004]  EWCA Civ 943; [2005] 1 ICR 329. A civilian employee had complained that a police inspector had sexually assaulted her at work. As a result of that allegation an all-male disciplinary board was set up under the Police Discipline Regulations to hear the employee’s allegations.  The allegations were dismissed by the board and the employee brought proceedings alleging that the board had committed various acts of sex discrimination. These included the fact that the board selected was all male and that the board had allowed questions to be put to the claimant which were humiliating. 

17.	The Employment Tribunal held as a preliminary issue that it had no jurisdiction to hear the complaint since it concerned judicial or quasi-judicial proceedings which were immune from suit. That conclusion was upheld by the Employment Appeal Tribunal and then by the Court of Appeal.

18.	The leading judgment in the Court of Appeal was given by Lord Justice Auld. He first dealt with an argument to the effect that the principle of immunity only attached to defamatory statements and did not apply to discrimination claims of this kind. After citing certain authorities, he said this:

“Mr Hand submitted, and I agree, that there is no basis for the proposition that the absolute immunity rule only attaches to defamatory statements. As the employment tribunal well described in paras 9(o)-(q) of its extended reasons, and as the Employment Appeal Tribunal also found, it attaches to anything said or done by anybody in the course of judicial proceedings whatever the nature of the claim made in respect of such behaviour or statement, except for suits for malicious prosecution and prosecution for perjury and proceedings for contempt of court. That is because the rule is there, not to protect the person whose conduct in court might prompt such a claim, but to protect the integrity of the judicial process and hence the public interest. Given that rationale for the rule, there can be no logical basis for differentiating between different types of claim in its application. The width of its application in this respect has been judicially stated many times, most notably in Munster v Lamb (1883) 11 QBD 588, per Fry LJ at pp 607-608, and Marrinan v Vibart [1963] 1 QB 528, per Sellers LJ at p 535 and per Diplock LJ at pp 538-539.”

19.	His Lordship expressly rejected an argument that by applying the doctrine in this way the court was thereby extending the immunity to claims for unlawful discrimination; rather, the question was whether these claims should be excluded from the general immunity that would otherwise attach to them (para 19). Auld LJ then formulated the specific issue which the court had to determine in the following way:

“The nature of the exercise in determining whether a body is to be regarded as “judicial” for the purpose of giving absolute immunity to those involved in its proceedings is not a technical or precise one. It is one of determining its similarity in function and procedures to those of a court of law. It is a matter of fact and degree, one, as Lord Atkin said in O’Connor v Waldron [1935] AC 76, 81, “not capable of very precise limitation”. Thus, in Royal Aquarium [1892] 1 QB 431, Lord Esher MR spoke, at p 442, of :
“an authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes … [namely] acting … in a manner as nearly as possible similar to that in which a court of justice acts in respect of any inquiry before it..”
And Lord Atkin in O’Connor v Waldron [1935] AC 76, 81, referred in the same context, and in confirmation of Lord Esher’s proposition, to a tribunal that “has similar attributes to a court of justice or acts in a manner similar to that in which such courts act”.

20.	Then after referring to the four aspects identified by Lord Diplock in the Trapp case he applied those criteria to the particular facts of the case and concluded that the employment tribunal was fully justified in concluding that the disciplinary hearing had all the essential features of judicial proceedings before a court of justice. He also rejected certain arguments based on Articles 6 and 8 of the European Convention on Human Rights.

21.	As Auld LJ pointed out (para 45):

“This is not a technical exercise, but one of overall impression taking into account all the circumstances however categorised”.

The Tribunal decision.
22.	The Tribunal properly directed itself in accordance with the cases of Heath and Trapp v Mackie.  It accurately and succinctly described the “essential question” as being whether “the proceedings before Assistant Commissioner Godwin were sufficiently “judicial” to be protected by the absolute immunity rule”.  The chairman concluded that they were. He summarised his reasons as follows: 

“6.3 I turn to regulation 13 and Lord Diplock’s four categories of similarity in Trapp v Mackie. So far as the first is concerned, tribunal recognised by law, there can be no doubt that the tribunal in this case consisting of the chief officer or his delegate the Assistant Commissioner under regulation 13(1) of the Police Regulations is recognised by law. It is specifically the chief officer who is empowered by statute to review or hold a hearing and dispense with the probationer’s services. So far as the issue for determination being akin to the subject matter of civil or criminal issues in the courts, then as with a police disciplinary board, which has been held to be judicial, then so Mr Godwin’s tribunal, which also had available to it the sanction of dismissal, was equally a determination akin to that of a civil or criminal court or tribunal.
6.4 The fourth matter, the outcome being a binding determination of the civil rights of the parties, is also made out on analogy with the Heath decision, because the regulation 13 proceedings constitute a binding determination (subject only to judicial review) of the Claimant’s civil rights with regard to his employment with the Respondent.
6.5 It is with the third of Lord Diplock’s categories that, as Mr Edwards recognises, there is the most difficulty for the Respondent: namely, is the procedure akin to that in the civil or criminal courts. Of course, in Heath itself, with the policy disciplinary board, there was a full haring with disclosure of witness statements, provision for legal representation on both sides, all evidence in chief the subject of cross examination, etc. This was not the case here. As Mr Edwards argues, however, the regulation 13 proceedings are not a precise equivalent to the police disciplinary board proceedings, based as they are on essentially admitted acts of misconduct, etc, with warnings administered and admissions by the probationer made. It is thus akin to a plea of guilty followed by a plea in mitigation at the stage of Mr Godwin’s review/hearing. Had the Claimant attended that hearing, he would have been able to put forward his case on why he should not be dismissed. In other words, Mr Godwin was looking at penalty rather than liability, and so there was no need for a process of the taking of evidence with cross examination of witnesses, etc. As with the police disciplinary board, there is no internal appeal from Mr Godwin’s decision, although it is subject to judicial review. Nor was Mr Godwin’s decision administrative in any sense contemplated by the examples given in the Heath case of administrative decisions.
6.6 Thus, I find I am persuaded that the Claimant’s case is sufficiently analogous to the case of Mr Heath, and therefore that the Court of Appeal decision is binding on the facts of this case. Therefore, the tribunal has no jurisdiction to hear the discrimination claim arising out of the Claimant’s dismissal and that part of the claim must be dismissed.”

The grounds of appeal.
23.	Essentially the grounds are simply that the Tribunal misapplied the principles enunciated in Trapp, and failed to appreciate the fundamental distinction between a disciplinary hearing as in Heath and these very different procedures.  

24.	Mr Massarella’s principal argument was directed at the procedure which he submits was far removed from that employed in the courts.  It was not adversarial; there were no witness statements; no oral evidence or cross examination to determine relevant facts; no legal representation; no rules about the burden and standard of proof; and no obligation on the Assistant Commissioner to give reasons for his decision.

25.	Indeed, there were no formal procedures at all.  The procedure identified in the internal policy document was managerial in nature and typical of the kind of procedure emanating from a Human Resources department for dealing with poor performance.  Nor was it appropriate to define the decision as a penalty or sanction; it was merely an assessment of suitability. By contrast with regulation 13 procedures, the current rules dealing with misconduct, namely the Police (Conduct) Regulations 2004 deal specifically with sanctions in rule 35.

26.	It was also submitted that the issue was not akin to that which a court has to determine; it was not about the rights of the parties as such, but rather whether the probationer would make an efficient and well conducted policeman.  That involved a subjective judgment of a managerial nature.   For essentially similar reasons it was suggested that there were really no civil rights in play: the dispute was not capable of being resolved by the application of established legal principles. 

27.	Mr Edwards submits that the Tribunal has not erred in law. It was justified in concluding that the doctrine was applicable by analogy with the Heath case.  The Tribunal had considered carefully each of the four matters identified in Trapp; it had properly concluded that each pointed in favour of the doctrine applying, and the analysis displayed no error of law.  In particular, the Tribunal was right to say that in substance the hearing was akin to the disciplinary hearing but with only the penalty being in issue.  The first part involving fact finding was not necessary because the various acts of misconduct were admitted. Whilst performance issues were also in play, these were principally matters of opinion which could not properly be resolved by a fact finding exercise. The probationer had the chance to respond to any criticisms, and that is what one would expect in any legal process.  It would, moreover, be curious if there were a distinction to be drawn between the disciplinary dismissal of a policeman and the dismissal of a probationer.

Conclusion
28.	I confess that in so far as the question is a matter of impression, as Auld LJ indicated, my instinctive response was that this case was a long way removed from the kind of cases where absolute immunity should apply. The Assistant Commissioner is not resolving some dispute between contending parties according to certain established legal principles.  He is exercising a very different and far more subjective judgment, assessing whether the probationer is sufficiently efficient and well behaved to remain in the police at all. This requires consideration of a wide range of materials, much wider than those typically considered in a court of law.  That initial impression is fortified by a more detailed concentration on the particular features of the regulation 13 procedure.

29.	In my judgment, what we have here is akin to an employer deciding whether a particular employee (or as in this case, office holder) should remain in employment. There is no lis between the parties in the sense in which that is traditionally used in the context of legal proceedings. Of course, in a general sense there is a dispute as to whether the employee has the requisite qualities, character and temperament to remain in employment. Plainly that involves the exercise of judgment by the officer charged with the task of making that decision.  But it is not in my opinion akin to a judicial judgment; it is a far cry from the kind of issue which courts and tribunals typically have to determine.

30.	I appreciate that in Trapp the question was whether the dismissal of the teacher was reasonably justified, but in that case the education authority had given reasons for the dismissal and the purpose of the enquiry was to determine whether the dismissal for those reasons was reasonably justifiable.  Similarly in Heath the question before the Tribunal was whether there had been sexual harassment which involved finding facts and applying established law to those facts.

31.	Here, there is simply a decision taken after consideration of a whole range of reports and observations.  It is common ground that the probationer will have had the opportunity to make representations about them, but in so far as facts are disputed - and sometimes they might be with respect to allegations of poor performance - there is no resolution of that dispute.  

32.	When one focuses upon the third aspect raised by Lord Diplock, namely the procedure adopted in carrying out the enquiry, the differences from court proceedings, or anything akin to them, are starkly highlighted.

33.	As Mr Massarella observed, there is a conspicuous lack of any of the procedures which would typically apply on the forensic stage.  The proceedings are not adversary; the Assistant Commissioner is under no obligation to find any specific facts; there is no calling of any witnesses; there is no cross examination, no legal representation, and no duty to give reasons. Indeed, I would go as far as to say that there are none of the trappings that would normally be associated with a court of law at all. The Employment Tribunal commented that this was because liability was not in issue and that all the Assistant Commissioner was doing was determining the appropriate penalty.  

34.	Mr Edwards has reiterated that argument before me today. I confess I do not understand it. Mr Hasan has not accepted that the observations and criticisms made of him are necessarily just at all. He has had an opportunity to deal with them, but that merely ensures that the procedures are fair, not that they are akin to those adopted in a court of law. 

35.	Nor do I think that ‘penalty’ is really an appropriate term for the decision taken in this case.  Mr Hasan has not been penalised or disciplined for misconduct or some wilful failing, or at least not necessarily so.  An assessment is made as to his suitability.  Whilst the probationer’s disciplinary record is relevant to that, and sometimes may be highly material, it is only one of the matters under consideration.  The probationer may be honest, keen, and conscientious but simply incompetent.

36.	It is perhaps a nice question whether the Tribunal can be said to be recognised by law, or whether civil rights are in issue.  I am not sure it is particularly helpful to look at these matters independently of the other two features; they are all interrelating factors.  In any event, it seems to me somewhat artificial to do so in this case.  Plainly the tribunal - if that is an appropriate word for the Assistant Commissioner - is not domestic and the source of the power is statutory: to that extent it is regulated by law. But the fact that the procedures are nowhere statutorily prescribed is a factor pointing against the analogy with a court, although it plainly is not decisive since there was no such procedure identified in the Trapp case.  

37.	Similarly, even if it can be said in a broad sense that the question whether someone can continue in employment is the determination of a civil right, the circumstances in which that right is in issue here does not suggest that it is the same kind of civil right which is traditionally protected by the courts or by a procedure akin to that adopted by a court. The identification of something as a civil right is not term of art, and the appropriate categorisation does not in my view really assist in this context. 

38.	Finally, I stand back and consider what public interest would be served here by denying the claimant the right to bring a discrimination claim. It seems to me that logically the scope of the immunity would be extremely broad. If this is akin to a disciplinary procedure, does it extend to the reports and observations of those who have commented on the probationer in the same way as it would the witnesses in a disciplinary hearing?  Or at least to those who have made recommendations to the effect that the probationer should be dismissed? Do they have absolute immunity for their comments or recommendations, however malicious, discriminatory or ill considered?  

39.	I do not think that the public interest would be well served by such a doctrine, and it would clearly extend well beyond existing principles.  Mr Edwards recognises that and does not suggest that the principle of absolute immunity extends that far.  It applies only to the decision of the Assistant Commissioner himself.  He rightly points out that it will apply to a judge hearing a case without witnesses and to that extent there is no reason why the principle should not apply to a single decision maker here.  But if he is correct in saying that the immunity can be invoked, it is difficult to see why it should not equally apply to all public officers making similar decisions about performance related dismissals, at least if their powers are statutorily conferred; and there is no obvious reason why the Assistant Commissioner should be treated differently and more favourably than those who make recommendations to him. I do not accept that there is any true analogy between the position or function of the Assistant Commissioner and a judge.

40.	Accordingly, I have come to the clear conclusion that this is not a case where the immunity is attracted and that it was not open to the Tribunal, properly directing itself in law, to have concluded that it was.

41.	 It follows that there is no need for me to focus on arguments tentatively advanced by Mr Massarella in relation to Articles 6 and 8 of the ECHR.  Suffice it to say that in any event, I think this argument has been determined by the Court of Appeal decision in Heath, which would be binding on me. Had this procedure been of a kind which did attract the immunity then, for reasons given in the Heath case, I see nothing in Article 6 which would change that conclusion. Similarly, in relation to Article 8. In short, they really add nothing to the primary argument that is being advanced in this case, and Mr Massarella recognised that.

42.	For all these reasons, the appeal succeeds.  Mr Hasan is entitled to pursue his claims. Of course, I say nothing about their merits.  Whether they have any will be for the Tribunal to determine.