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 ICR 1135, Court of Appeal - Paul Rose QC, Ijeoma Omambala
Before the coming into force of the Race Relations (Amendment) Act 2000, complaints of vicarious or constructive liability against chief constables in relation to discriminatory acts carried out by police officers could not be sustained because on a proper construction of the Race Relations Act 1976 a police constable was not an employee but the holder of a public office. * Leave to appeal to the House of Lords refused.
Appeal by the complainant ('L') from the decision of the Employment Appeal Tribunal ('EAT') dated 21 September 2001. The issue on this appeal, as before the EAT, was whether before the enactment of the Race Relations (Amendment) Act 2000 a chief constable was liable under Race Relations Act 1976 for acts of discrimination committed by police constables against other constables. L submitted that: (i) s.16 of the 1976 Act required a purposive construction, the purpose of which was the inclusion of the police in the employment field with the allocation of the chief constable as the employer; (ii) that a purposive construction of s.32 of the 1976 Act required the acts of a constable as being deemed to have been done by the chief constable as employer; and (iii) alternatively, s.75 of the 1976 Act was the starting point because a police constable was a statutory office or office of the Crown and fell within s.75(1)(b) of the 1976 Act and that the office of chief constable was a statutory office and accordingly fell within s.75(2)(b) of the 1976 Act.
HELD: (1) A purposive construction required the making of a choice between conflicting constructions as a means of forwarding the purpose of the Act. (2) To that extent L sought to adduce parliamentary debates on the grounds that s.16 of the 1976 Act was ambiguous. However, there was no ambiguity in s.16 as argued by L. There was no extension of s.16(1) to include acts done by constables to other constables. (3) The EAT was correct in its conclusion that s.16 did not require a chief constable to be treated as a constable's employer in relation to acts done by one constable against another (AM v WC & Ors (1999) ICR 1218 so far as it related to the liability of chief constables was wrongly decided). (4) L's difficulty in relying on s.32 was that a police constable was not an employee, he was a holder of a public office. Section 32 presupposed the existence of an employment relationship which did not exist between a chief constable and a police constable under his control. The words "(acts) done by him" meant exactly that. Accordingly, s.32 was also clear and unambiguous and not the subject of a purposive construction. (5) L argued that a constable was now so regulated by statute that the office of constable was no longer a common law office and therefore a constable fell within s.75(1)(b) of the 1976 Act. However, there was no statute that created the office of constable. It was a common law office. In any event, the route that L sought via s.75(1)(b) was subject to s.16 (see s.75(3)). Section 16 had primary effect and was unaffected by s.75(1). (6) With regards to L's argument under s.75(2)(b) a police force was required to be under the control of a chief constable appointed by the Police Authority (see s.11(1) Police Act 1996). It was unnatural to describe a constable's service as being on behalf of the Crown for the chief constable. Accordingly, L's argument on that ground would also fail.
Appeal dismissed. Permission to appeal refused.
* The petition of Cheryldeen Shantla Liversidge seeking leave to appeal to the House of Lords in this case was presented and referred to an Appeal Committee on 25 June 2002.
* The House of Lords refused an application by Cheryldeen Shantla Liversidge seeking leave to appeal in this case on 18 November 2002.
Paul Rose QC instructed by and for the respondent. Laura Cox QC and Ijeoma Omambala instructed by Pattinson & Brewer for L.