THE INDUSTRIAL TRIBUNALS 

CASE REF:	02239/97SD
02319/97SD
02404/97SD

CLAIMANTS:	1.	Caroline Patricia Edmondson
2.	Sharon Philomena Smyth
3.	Olive Elizabeth McCawley

RESPONDENTS:	1.	Michael Allen
2.	Brian Burton
3.	Chief Constable of the Royal Ulster Constabulary

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that:-

1.	The third respondent cannot be liable in relation to any of the claims made by each of the claimants against him, insofar as they relate to the alleged acts of unlawful discrimination by the second respondent and the said claims against the third respondent are therefore dismissed.

2.	The third respondent cannot be liable in relation to the claims made by each of the claimants against him, insofar as they relate to the alleged acts of unlawful discrimination by the first respondent in subsequently showing the video and the said claims against the third respondent are therefore dismissed.

3.	The third respondent can be liable in relation to the claims made by each of the claimants against him insofar as they relate to the alleged acts of unlawful discrimination by the first respondent in requiring the claimants to take part in the fitness test and to complete the questionnaire and those claims will require to be determined at a substantive hearing.

Appearances:
The claimants were represented by Ms L Askin, Barrister-at-Law, instructed by the Equality Commission.
The first respondent did not appear and was unrepresented.
The second respondent appeared in person and was unrepresented.
The third respondent was represented by Mr P Grant, Barrister-at-Law, instructed by the Crown Solicitor.

1.	This matter came before the tribunal by way of a preliminary hearing to consider the following issue namely:-
“Whether the complaints of the claimants against the third named respondent should be dismissed, having regard to the provisions of Article 19 of the Sex Discrimination (Northern Ireland) Order 1976.”

1.2	The second respondent, Brian Burton, indicated to the tribunal, after he was given clarification by the tribunal of the terms of the said issue and after he was informed by the tribunal that any application by him to be dismissed from the proceedings would have to await the substantive hearing, that he did not wish to call any evidence or make any submissions in relation to the above issue.  He then, with the leave of the tribunal, left and took no further part in the preliminary hearing.

1.3	At the preliminary hearing there was no appearance by the first respondent, Michael Allen, and he was not represented.  Indeed Ms Askin informed the tribunal that she had been informed by Mr D Flanagan, Barrister-at-Law, who had represented the first respondent at the previous preliminary hearing in this matter, which had concluded with the tribunal’s decision recorded in the register and issued to the parties on 6 April 2004 (‘the April 2004 Decision’), that his client was aware of this hearing and that neither he nor his client would be in attendance at this hearing.

	Following this hearing, but before this decision was issued, the tribunal was informed that the claimants had withdrawn their complaints against the first respondent, without objections.  A formal decision dismissing the complaints of the claimants against the first respondent, following the said withdrawal, will be issued by the tribunal in due course.  In the view of the tribunal, the said withdrawal and subsequent dismissal does not alter the preliminary issue, as set out above, to be determined by the tribunal since it involves consideration of the liability of the third respondent for the actions of Michael Allen, whether or not he remains a party to these proceedings.

1.4	The tribunal, at the outset of the hearing, invited Ms Askin to call any evidence, on behalf of the claimants, in relation to the said preliminary issue.  She declined to do so and indicated the claimants were relying on the facts as found by the tribunal, in the April 2004 decision – which determined whether the tribunal had jurisdiction to hear the claimants’ complaints against the respondents, having regard to the provisions relating to the time limits for presentation of the complaints, as set out in Article 76 of the Sex Discrimination (Northern Ireland) Order 1976.  She stated that she would however wish to make submissions to the tribunal in relation to the said issue.  Mr Grant informed the tribunal that, in light of the foregoing, he would not be calling any evidence on behalf of the third respondent’ but he would also wish to make submissions to the tribunal.

	Prior to this hearing both Ms Askin and Mr Grant prepared and exchanged skeleton arguments, which were lodged with the tribunal.  The tribunal would wish to acknowledge the assistance given to them by both Counsel, having regard to the contents of their skeleton arguments and the oral submissions made during the course of the hearing, which amplified their written submissions.  

2.	Before considering the particular issue to be determined by the tribunal, it is necessary to set out, in some detail, the relevant legislative background applicable to the determination of the said issue, and which legislation was in force, at the material and relevant time.

2.1	The Equal Treatment Directive 76/207/EEC which provided for member states to implement the principle of equal treatment of men and women in employment and occupation is now incorporated in Article 141(3) of the consolidated version of the Treaty of Rome.  The Sex Discrimination (Northern Ireland) Order 1976 (‘1976 Order’) gives effect in Northern Ireland to that obligation.

2.2	Part III of the 1976 Order headed “Discrimination in the Employment Field” sets out the particular forms of discrimination in that field made unlawful under the 1976 Order.

	Article 8 of the 1976 Order states:-

“(1)	It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland to discriminate against a woman – 

(a)	in the arrangements he makes for the purpose of determining who should be offered that employment, or

(b)	in the terms on which he offers that employment, or

(c)	by refusing or deliberately omitting to offer her that employment

(2)	It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland to discriminate against her – 
(a)	In the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services or by refusing or deliberately omitting to afford her access to them, or

(b)	By dismissing her, or subjecting to any other detriment.

2.3	Article 19 of the 1976 Order defines the engagement of a police officer –

“19 (1) for the purposes of this part [Part III] the holding of the office of constable shall be treated as employment – 

(a)	By the chief officer of police as respects any act done by him in relation to a constable or that officer;

(b)	By the police authority as respects any act done by them in relation to a Constable of that office.

2.4	Article 19 of the 1976 Order was replaced with effect from 4 November 2001 by the Police (Northern Ireland) Act 2001 section 74 and schedule 5; which substituted Articles 84 and 85 for Article 19.  In essence, from that date, a police officer is treated as in the employment of the Chief Constable, for the purposes of the 1976 Order.  However, the said repeal was not retrospective and as the events, the subject matter of those proceedings occurred in or about 1995, the tribunal is of the opinion that the substituted provisions are of no assistance in relation to the determination of the preliminary issue.

2.5	Part V of the 1976 Order, headed “Other unlawful acts” provides for the liability of:-

		(i)	Employees (Article 42(1)) and

		(ii)	Principals and agents (Article 42(2)).

	Article 42(1) states:-

“Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it is done with the employer’s knowledge or approval.”

	Article 42(2) states:-

Anything done by a person as agent for another person with the authority (whether express or implied; and whether precedent or subsequent of that other person shall be treated for the purposes of this order as done by that other person as well as by him.

2.6	Article 63(1) of the 1976 Order gives the entitlement to complain:-

“(1)	A complaint by any person (“the complainant”) that another person (“the respondent”) –

(a)	has committed an act of discrimination against the complainant, which is unlawful by virtue of part III, or

(b)	is by virtue of Article 42 … to be treated as having committed such an act of discrimination against the complainant,

may be presented to an industrial tribunal.

2.7	Section 6(2) of the Police Act (Northern Ireland) 1970 as amended provides that the police shall be under the direction and control of the Chief Constable of the Royal Ulster Constabulary.

2.8	Section 14 of the Police Act (Northern Ireland) 1970, (as amended), made provision for the liability of the Chief Constable for tasks committed by police officers under his direction and control in the exercise or purported exercise of their functions, in the same way as a master would be liable in respect of tasks committed by his servants in the course of their employment.

3.	The right in Northern Ireland of a police officer to hold the Chief Constable of the Royal Ulster Constabulary liable for unlawful acts of unlawful sex discrimination committed against him or her in the course of their service has not, prior to the repeal of Article 19 of the 1976 Order, as far as the tribunal is aware, been the subject of any reported case in Northern Ireland.  However, in Great Britain such matters have been the subject of a series of reported cases, to which further reference shall be made elsewhere in this decision.  Since the legislation, the subject matter of the said reported cases is in similar terms to the legislation applicable in Northern Ireland, at the material time, and to which detailed reference has been made above, the tribunal is satisfied that the decisions in the above reported cases are highly persuasive and should be applied by this tribunal, where it is relevant and appropriate to do so.

3.1	In a recent decision of the EAT Yearwood v Commissioner of the Police of the Metropolis (2004) ICR 1660 Judge McMullen at paragraph 23-27 of his judgment set out a helpful summary of the law, which in the opinion of the tribunal would have application to the law in Northern Ireland, at the time of the complaints, the subject matter of these proceedings.

“23.	A police constable is not an employee of the [Chief Constable]:  Farrah v Commissioners of Police of the Metropolis (1998) QB65.

24.	A Police Constable is not the agent of [the Chief Constable] who is not therefore directly liable for a constable’s activities in the course of their duties, as an officer of the peace:  Farrah 

25.	[The Chief Constable] is not responsible for acts of discrimination committed by an officer against another:  Chief Constable of Bedfordshire Police v Liversidge (2002) ICR 1135.

26.	An act done by an officer below the rank of [Chief Constable] is regarded as an act done by the[Chief Constable] if it is to do with “essentially management decisions” eg recruitment posting etc made as part of the direction and control of the police force vested in the Chief Constable, but carried out under his or her authority by other officers in the Chain of Command:  Chief Constable of Cumbria v McGlennon (2002) ICR 1156 (Mr Commissioner Howell QC) approved in Chief Constable of Kent County Constabulary v Baskerville (2003) ICR 1463.

27.	An act done by a police officer as agent of the Chief Constable is to be treated as having been done by the agent and the principal:  see the Baskerville case.”

4.	The tribunal has set out in the April 2004 decision the facts as found by it in relation to the determination by it of the preliminary issue, the subject matter of that decision; and which have been adopted, as set out above, by the parties for the purposes of the determination by the tribunal of the said preliminary issue, the subject matter of this decision.

4.1	In summary the facts, as found by the tribunal in the 2004 decision, were as follows:-

(i)	In 1995 each of the claimants were a part-time reserve constable in the Royal Ulster Constabulary, attached to Greyabbey Police Station, Co Down, where the first respondent was the Station Sergeant and, in effect, their line manager and the second respondent was one of the full-time regular Constables.

(ii)	On or about 26 July 1995 the claimants were informed by the second respondent that the first respondent required them as part of their duty to take part in a fitness test, which he (the first respondent) had been instructed to carry-out for the introduction of fitness assessments; and which he had to have completed before he was due to be transferred to another police station in or about August 1995.

(iii)	On 27 July 1995 the claimants took part in the test, which consisted of a series of timed exercises supervised by the first respondent, a timed two mile run monitored by the first respondent in a police car accompanied by the second respondent, and a written questionnaire, which, on completion, was handed to the first respondent in an envelope addressed to the Occupational Health Unit.

(iv)	Subsequently, the claimants became aware that the test was not officially authorised, was not genuine and they had by taking part been the victim of some sort of prank.

(v)	In or about September/October 1995 a party was held, attended by the claimants, in connection with the leaving from Greyabbey Police Station, in or about August 1995, of the first respondent for another post.  During the course of the evening the second respondent made comments, in the presence of the claimants, about the envelopes he was holding.  These made them concerned that some of their answers to the questionnaire would be read out or in some way be revealed at the party.  Before the end of the party each claimant was handed one of the envelopes, which contained a paper hat on which there was a reference to their fitness test.

(vi)	In or about October/November 1995 a video which had been taken of the test was shown by the first respondent at Newtownards Police Station.

4.2	The tribunal made no finding of fact, on the basis of the evidence presented to it, for the purposes of the April 2004 decision, concerning who made the said video subsequently shown at Newtownards Police Station by the first respondent.

4.3	For the purposes of the determination of this preliminary issue the tribunal was required to assume that the said actions constituted acts of discrimination contrary to the 1976 Order; but in view of the denial of any such unlawful discrimination by each of the respondents this will require in due course, and subject to this decision, to be the subject of a substantive hearing between the parties.

4.4	There was no allegation by the claimants that there was any direct action on the part of the Chief Constable for which he could be thereby personally liable.  The issue for determination by the tribunal was whether the Chief Constable of the Royal Ulster Constabulary could be liable for any of the said actions, as found by the tribunal, of either the first respondent and/or the second respondent, having regard, in particular to Article 19 of the 1976 Order; which, as stated previously, was not repealed at the time of the actions, the subject matter of these proceedings.

4.5	As was stated in Chief Constable of Bedfordshire Police v Liversidge (2002) ICR 1135, paragraph 29 per Gibson LJ the way [section 14 of the Police Act (Northern Ireland) 1970, as amended] operates is by imposing true vicarious liability in the [Chief Constable] for their Constables’ tasks and that is quite different from the constructive liability imposed on employees by [Article 42]; which deems the employer himself to have committed the act of discrimination committed by the employee.

5.0	Part III of the 1976 Order covers discrimination in the employment field and Article 19 makes special provision in relation to the police; but the deemed employment of a constable by the Chief Constable under the said Article was, it was held in the case of Liversidge, limited to acts done by the Chief Constable in relation to the Chief Constable or his office and did not extend to acts done by one constable against another constable.  Thus, in that case, which was a case of race discrimination, albeit applying legislation similarly worded to that found in the 1976 Order, the claimant police constable was unable to establish that the Chief Constable was liable for the actions of her fellow officers, who had referred to her using a derogatory term for black women.  

Having regard to the above decision in Liversidge, which was a decision of the Court of Appeal, the tribunal would have had little hesitation in finding that the Chief Constable of the Royal Ulster Constabulary could not be liable for any of the said activities of the first respondent and/or the second respondent committed against their fellow officers, the claimants.

5.1	However Liversidge was distinguished in the EAT decision of Chief Constable of Cumbria v McGlennon (2002) ICR 1156 (“McGlennon”).  In that case the EAT considered again the provisions of [Article 19] the 1976 Order, following the decision of the Court of Appeal in Liversidge.  In the case a male police constable was posted by his superior officer to an unpopular outlying rural police station and made complaints of sex discrimination and victimisation arising out of the said posting.  The Employment Appeal Tribunal in McGlennon held; per Mr Commissioner Howell QC, that the words “any act done by him” – [Article 19 of the 1976 Order] are both apt and intended to include what are essentially management decisions on such matters as recruitment and posting, as part of the direction and control of the force vested in the Chief Constable under [section 6 (2) of the Police Act (Northern Ireland) 1970 as amended], but in fact taken and carried out under his authority by other officers at the appropriate level in the Chain of Command.  Mr Commissioner Howell QC in his judgment, which was expressly approved by the Court of Appeal in the case of Chief Constable of Kent County Constabulary v Baskerville (2003) ICR 1463 (“Baskerville”) could see no reason, in that context, to exclude the operation of [article 42 (2) of the 1976 Order], so that any such act done by a subordinate officer with the actual authority, express or implied, of the Chief Constable is his act for the purposes of [article 19 of the 1976 Order].

	The tribunal is careful to note that the McGlennon decision is a case decided very much on its own facts and related to decisions taken in relation to posting and it can be easily seen why they were referred to as “essentially management decisions”.

However the tribunal does not consider the decision is confined to decisions such as recruitment and posting.  Under Section 6 (2) of the Police Act (Northern Ireland) 1970 the direction and control of the force is vested in the Chief Constable.  In the course of the oral submissions to the tribunal by the representatives of the parties Mr Grant acknowledged that issues relating to the health and fitness of police officers came within such direction and control and the Occupational Health Unit had been set up to deal with and consider such issues.

5.2	In the view of the tribunal, in light of the foregoing, the actions of the first respondent, as sergeant of the station, in requiring the claimants to take part in and carry out the fitness test, with its various timed exercises and completing the questionnaire were “essentially management decisions” as part of the said direction and control vested in the Chief Constable and carried out by him as the station sergeant, the effective line manager of the claimants, and therefore a subordinate officer in the level of command.

However, for the Chief Constable to be liable for the said actions of the first respondent such actions had to be carried out by the first respondent with the actual authority, express or implied, of the Chief Constable.  The said test and completion of the questionnaire were not officially authorised, were not genuine and were some sort of a prank.  In such circumstances, the said actions of the first respondent could not, in the tribunal’s view, be said to be expressly authorised by the Chief Constable.  However, as set out in McGlennon, it is sufficient if the action is done by the subordinate officer with the implied authority of the Chief Constable, such authority can be inferred from the conduct of the parties and the circumstances of the case and can include incidental/usual/customary authority (see Chitty on Contracts 28th Edition paragraph 32.043-48).  The Chief Constable, by necessity, must expressly but also impliedly delegate down the chain of command those functions vested in him relating to his direction and control of the force (see paragraph 39 of Chief Constable of Kent Constabulary -v- Baskerville (2003) ICR 1463).  As seen above, fitness and health of his officers is such a function.  The tribunal is satisfied that, in the circumstances, the actions of the first respondent, as the claimants’ station sergeant and effective line manager of the claimants, came within the said implied delegated authority of the Chief Constable.  In relation to those actions of the first respondent, the tribunal was therefore satisfied the Chief Constable, the third respondent, could be liable pursuant to article 19 of the 1976 Order.

6.1	In the view of the tribunal, on the facts as found by it, the tribunal was not satisfied that any of the actions taken by the second respondent, who was of the same rank as the claimants, albeit full-time, in relation to the taking part in the fitness test and/or completion of the questionnaire fell within the management test as set out by McGlennon.  The relevant decisions were at all times taken by the first respondent, as the station sergeant.  Similarly, the tribunal was satisfied the actions of the second respondent at the leaving party for the first respondent and/or of the first respondent in subsequently showing the video of the test did not come within the management test as set out in McGlennon.  Subject to what is stated below, the tribunal therefore concluded that the third respondent could not be liable for these actions by the first respondent and/or the second respondent pursuant to Article 19 of the 1976 Order.

6.2	In the Court of Appeal decision of Baskerville, which approved McGlennon the Court made clear that [Article 42(2) of the 1976 Order] was a general provision applicable to other parts of the [Order], including [part III] and required a principal to be treated as also having done that which his agent had done with his authority; with the consequence that if a discriminatory act was done by a police officer as agent of the Chief Constable with his authority, [Article 19(1)] had to be read as applying to that act having been done also by the Chief Constable, who was, in relation to that act to be treated as the employer of the constable who had made the complaint of unlawful discrimination.  In essence Article 41 (2) prescribes the consequences for the principal of authorised acts done by the agent for his principal.  

6.3	Since none of the actions of the first respondent and/or the second respondent, as set out in paragraph 6.1, were so authorised by the third respondent, the decision of the Court of Appeal in Baskerville was, in the tribunal’s view, of no assistance to the claimants in establishing liability against the third respondent in respect of those actions.

6.4	In Baskerville the Court of Appeal were also asked to consider whether liability could be established against the Chief Constable by placing reliance on the Equal Treatment Directive as an aid to the construction of the [1976 Order], which it was accepted must be read, in so far as possible in conformity with that directive.  In view of the conclusions reached by the Court of Appeal in Baskerville the said Court did not find it necessary to come to any conclusion on the arguments placed before it in reliance on the Equal Treatment Directive.  

6.5	In McGlennon, in view of his decision, as set out above, Mr Commissioner Howell QC did not require to come to any conclusion in relation to the effect or otherwise of the European Directive.  However he stated, per curiam, that, if his conclusion in relation to the proper interpretation of [Article 19 (1) of the 1976] Order was wrong, domestic legislation precluded a claim on any other basis and there was no separate remedy that could be pursued before the tribunal by virtue of the European Directive.  In essence, the Employment Appeal Tribunal would have been asked to find, if it had not found that Article [19(1)] could be interpreted as set out above, whether domestic legislation could be effectively overridden by the Equal Treatment Direction.  The Employment Appeal Tribunal in McGlennon (para 47) were of the opinion that as “the domestic legislation was clear and free of the kind of ambiguity that enabled the Employment Appeal Tribunal in Coote v Granada Hospitality Ltd (No 2) (1999) ICR 942, 948 E-H, to adopt a different construction between the two sets of similarly worded legislation so as to make the [1976 Order] conform with directive 76/267 there is in our judgment no separate remedy that can be pursued before the employment tribunal by virtue of the directive alone”.  The appeal tribunal made clear that the tribunal was a creature of statute with no inherent jurisdiction and was limited to dealing with the complaints brought within the jurisdiction given to it by statute.  It further did not accept that the difficulties in the way of a police constable bringing such a claim could be overcome by saying they were a “barrier” within the domestic legislation that had to be disregarded and disapplied as being incompatible with directly effective community rights.  

	In so holding the Appeal Tribunal relied on the well known dicta of Mummery J in Biggs v Somerset County Council (1995) ICR 811 830, which was approved by the Court of Appeal in Staffordshire County Council v Barber (1996) ICR 379, 395 (a) – (g).

“(a)	The industrial tribunal has no inherent jurisdiction.  Its statutory jurisdiction is confined to complaints that may be made to it under specific statutes such as the Employment Protection (Consolidation) Act 1978, the Sex Discrimination Act 1975, the Race Relations Act 1976, the Equal Pay Act 1970 and any other relevant statute.  We are not able to identify the legal source of any jurisdiction in the tribunal to hear and determine disputes about community law generally.

(b)	In the exercise of its jurisdiction the tribunal may apply community law.  The application of community law may have the effect of displacing provisions in domestic law statutes which preclude a remedy claimed by the applicant.  In the present case the remedy claimed by the claimant is unfair dismissal.  That is a right conferred as an employee by the act of 1978 and earlier legislation.  If a particular claimant finds that the Act contains a barrier which prevents the claim from succeeding but that barrier is incompatible with community law, it is displaced in consequence of superior and directly effective community rights.

(c)	In applying community law the tribunal is not assuming, or exercising jurisdiction in relation to a ‘free standing’ community right separate from rights under domestic law.  In our view, some confusion is inherent in or caused by the mesmeric metaphor ‘free-standing’.  ‘Free standing’ means not supported by a structural framework, not attached or connected to another structure.  This is not a correct description of the claim asserted by the applicant.  She is not complaining of an infringement of a free-standing right in the sense of an independent right of action created by community law, unsupported by any legal framework or not attached or connected to any other legal structure.  Her claim is within the structural framework of the employment protection legislation, subject to the misapplication of the threshold qualifying provisions in accordance with the EOC Case.”

As the appeal tribunal made clear the reason that a police officer’s claim is outside the scope of [Article 19(1) of the 1976 Order] and thus unable to bring a claim of unlawful discrimination against the chief constable under the [1976 Order] was not due to a procedural or qualifying barrier, inhibiting the exercise of a right to act otherwise provides; but rather was due to the fact that under general law in the United Kingdom a police officer is not an employee at all and so is outside the protection of those provisions in statute which prevent discrimination in employment unless there is an express positive provision to extend employment to a police officer artificially.  In the appeal tribunal’s view the direct effect of the directive did not give to the tribunal a separate jurisdiction to alter a police officers status in law or create new rights or remedies for discrimination outside the domestic legislation.  If there was infringement of the directive that was for parliament to remedy or possible a Court having inherent jurisdiction, but not an Industrial Tribunal.  

In Yearwood the Employment Appeal Tribunal considered further the issue, based on the European Directive, as set out above.  In paragraph 44 of the judgment Judge McMullan QC refers to the fact that in Baskerville (unreported 14 April 2003) the EAT adopted a purposive constructive of the words “an act done for him” in [Article 41(2) of the 1976 Order] to give effect to the directive.  As stated previously the Court of Appeal did not find it necessary to decide the matter under the Equal Treatment Directive.  Judge McMullan QC confirmed that, in his view, since there was no ambiguity in Article 41(2) in its reference to agents and principals, there was no room for a construction based on a purposive approach to the Equal Treatment Directive to include, within its scope, discrimination carried on by agents of a Chief Officer.

6.6	However, the above authorities, and in particular, McGlennon, did not refer to the decision of the Court of Appeal in Northern Ireland in Perceval-Price and Others v Department of Economic Development and Others (2000) IRLR 380 (“Perceval-Price”) where the court, in reaching its decision, disapplied those provisions in the 1976 Order, in relation to the definition of employment, which were inconsistent with the requirements of the relevant European Directives.  It has to be recognised that Perceval-Price, unlike McGlennon and this case, was not concerned with the alleged unlawful actions of unlawful discrimination by a police officer and the liability of the Chief Constable for such actions by a police officer.  Perceval-Price case was a test case relating to the Judicial Pension Scheme and the ability of certain tribunal chairmen to bring a claim of unlawful discrimination relating to their entitlement under the above scheme.  The Court of Appeal held that the tribunal chairmen were workers and who were in ‘employment within the meaning of European Community law and were entitled to bring a claim under the Equal Pay and Sex Discrimination legislation; albeit as statutory office holders they did not come within the definition of ‘employment’ under the said legislation.  The Court held, after referring to the decision in Biggs –v- Somerset County Council (1995) ICR 811, that that exclusion from that definition of a person holding such statutory office, who had shown some of the characteristics of employment as servant of the state, had to be disapplied on the grounds that it was inconsistent with the relevant provisions of the European Treaty and Directives.  

The Court, on the particular facts of that case were satisfied that the said exclusion was a ‘procedural/qualifying barrier’, which could be disapplied in accordance with the direction of Mummery J, in the case of Biggs, as set out above.

6.7	The tribunal, albeit reluctantly, has come to the conclusion that, the provisions in the 1976 Order preventing a police officer bringing a claim of unlawful discrimination against the Chief Constable arising out of the actions of a fellow police officer, is not a procedural/qualifying barrier referred to by Mummery J, and applied in Perceval Price; and which would have allowed the tribunal to disapply the said provisions on the grounds they were incompatible with the European Directives.

The tribunal have come to the conclusion that for the same reasons as found by the appeal tribunal in McGlennon that the reason a police officer’s claim is outside Article 19 of the 1976 Order is not because of any such qualifying/procedural barrier; but due to the fact that, under the general law applicable in Northern Ireland a police officer is not an employee at all and so is outside the protection of the said discrimination provisions in employment in the absence of any express provision extending employment to him.  The claims of the claimants in respect of the actions of the first and second respondent, as set out in paragraph 6.1, do not therefore come, in such circumstances, within the structural framework of the employment protection legislation and the said provisions preventing such claims cannot therefore be disapplied.

In the view of the tribunal any such alteration would require the intervention of parliament and an amendment to the 1976 Order.  Unfortunately for the claimants the statutory intervention of the Police (Northern Ireland) Act 2001 Section 74 and Schedule 5, substituting Articles 84 and 85 for Article 19, and which would now allow the claims of the claimants, was not retrospective.

7.1	Thus, in the opinion of the tribunal, the third respondent cannot be liable in relation to any of the claims made by each of the claimants against him, insofar as they relate to any of the alleged acts of unlawful discrimination by the second respondent and the said claims against the third respondent must therefore be dismissed.

7.2	The third respondent cannot be liable in relation to the claims made by each of the claimants against him, insofar as they relate to the alleged acts of the first respondent in subsequently showing the video and the said claims against the third respondent must therefore be dismissed.

However, in the opinion of the tribunal, the third respondent can be liable in relation to the claims made by each of the claimants against him insofar as they relate to the alleged acts of unlawful discrimination by the first respondent in requiring the claimants to take part in the fitness test and to complete the questionnaire and those claims will require to be determined at a substantive hearing.

Chairman:

Date and place of hearing:	22 November 2004, Belfast

Date decision recorded in register and issued to parties: