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Disciplinary bodies are not exempt from discrimination claims

Employment solicitor Simon Cuthbert discusses the case of P v Commissioner of Police of the Metropolis and its wider legal implications. 

Police officers
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    Simon joined Leigh Day in 2017 to work in the discrimination and employment department with Chris Benson and Kiran Daurka. Simon is an experienced employment lawyer and qualified as a solicitor in 2004. His current work at Leigh Day includes assisting thousands of police officers as part of the team who are bringing the police pensions challenge and working on other large group discrimination claims.
    Before joining Leigh Day earlier this year Simon acted for P throughout the legal case from drafting the Employment Tribunal claim in 2012, through the Employment Appeal Tribunal and the Court of Appeal stages, to the conclusion of the Supreme Court hearing in May 2017.

    In the case of P v Commissioner of Police of the Metropolis, the Supreme Court has allowed an appeal which will permit police officers, dismissed by a police misconduct panel, to now bring claims for discrimination in the Employment Tribunal to challenge their dismissals. 
     
    P, a serving police officer, was assaulted in 2010 and subsequently suffered post-traumatic stress disorder (“PTSD”).  In 2011, she was involved in an incident which led to her arrest and medical evidence indicated that her behaviour on that occasion was related to her PTSD. She was brought before a police misconduct panel and whilst she accepted that she had been guilty of the alleged misconduct, in mitigation, she relied on her good record as a police officer and her PTSD. However, the panel conducting the hearing decided that she should be dismissed without notice.
     
    P brought an Employment Tribunal claim on the basis that the panel’s failure to give due regard to her PTSD symptoms, and the associated and uncontested medical evidence in her favour, amounted to disability discrimination and disability-related harassment. In June 2013, the Employment Tribunal struck out her claim. Her appeal to the  Employment Appeal Tribunal was unsuccessful in March 2014, and the further appeal to the Court of Appeal was also unsuccessful.  
     
    The basis of these decisions was that the police misconduct panel was effectively a judicial body, and so P’s claim was barred by the principle of judicial immunity, which exists primarily to protect the judicial system from satellite litigation by litigants disgruntled with how a judicial body has dealt with their legal claim. It was argued on behalf of P that this principle did not apply to police misconduct dismissals, in particular because police officers had rights which were bestowed upon them under EU anti-discrimination legislation, including the right not to be dismissed in a discriminatory way. The Supreme Court agreed, and held that the UK is not entitled to deny police officers an effective and equivalent remedy in respect of the fundamental EU law right not to be discriminated against.
     
    The case has wider legal implications for all dismissals of police officers, not just misconduct dismissals, as it is known that police forces and their legal advisers had been arguing in Employment Tribunals that all police officer dismissals, including on the grounds of attendance and performance, were also “immune” and so could not be challenged in the Employment Tribunal. This decision will put an end to such arguments.   
     
    It also potentially extends the broader principle about judicial immunity to other professional disciplinary bodies which have some judicial characteristics, such as the right to legal representation, legally qualified chairs etc, and so individuals who suffer discrimination at the hands of such bodies could also now present a legal challenge for discrimination in the Employment Tribunal.

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