Appeal No.	 EAT/519/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 26 May 1999

Before
HIS HONOUR JUDGE PETER CLARK
MISS A MACKIE OBE
MR A D TUFFIN CBE

MR P G DAVIS	APPELLANT

METROPOLITAN POLICE SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

	HIS HONOUR JUDGE CLARK:	At all relevant times the Appellant, Mr Davis was a serving constable in the Metropolitan Police Service (“MPS”), holding the rank of sergeant and based at Hounslow Police Station.  It appears that in June 1998 he successfully brought a complaint of unlawful victimisation, contrary to Section 4 of the Sex Discrimination Act 1975, before the London (South) Employment Tribunal and was awarded £5,000 compensation.

1	By an Originating Application presented to the Tribunal on 13th January 1999, he brought a further complaint of victimisation under the Sex Discrimination Act and a complaint of disability discrimination under the Disability Discrimination Act 1995.  His case in relation to that latter complaint was that on the 9th October 1998 he had applied for a transfer to London Heathrow but had been rejected on a paper sift on the grounds that his sickness record was unacceptable.  He was informed of that fact at a feedback session held on 7th December 1998.

2	In resisting the claims MPS took a preliminary point that the provisions of the 1995 Act did not apply to a serving police officer.  That preliminary issue came before a Chairman, Mr D N Milton, sitting alone at London (South) on 10th March 1999.  He agreed with the Respondent and held that the Tribunal had no jurisdiction to entertain Mr Davis’ complaint under the 1995 Act.  The complaint of victimisation under the 1975 Act was ordered to proceed to a Full Hearing.  Against the Chairman’s decision in relation to the application of the 1995 Act, Mr Davis now appeals.  

3	This is a Preliminary Hearing held to determine whether the Appeal raises any arguable point of law.  We have considered Mr Davis’ written submissions developed in oral submission before us today.  Despite them and like the Chairman below, we have come to the firm conclusion that he is not entitled to the protection of the 1995 Act.  Our reasons are as follows.

4	Part II of the 1995 Act deals with discrimination by employers.  Section 4(2)(b) is potentially material in this case.  Is a serving police officer with the MPS in employment?  Section 68(1) of the 1995 Act defines employment thus:

“Employment means, subject to any prescribed provision, employment under a contract of service or of apprenticeship or a contract personally to do any work and related expressions are to be construed accordingly.”

5	That definition of employment is virtually identical to the definition given under the 1975 Act and the Race Relations Act 1976.  (See sections 82(1) and 78(1) respectively.)  How then is the Appellant able to bring a complaint under the 1975 Act and not the 1995 Act?  The answer, it seems to us, is that those holding the office of constable are deemed to be employed by virtue of Section 17 of the 1975 Act and Section 16 of the 1976 Act for the purposes of the protection given by those Acts respectively.  Without those deeming provisions, they would not be covered by those Acts under the ordinary definition of employment contained in Sections 82(1) and (78(1) respectively.  (See Sheikh –v- Chief Constable of Manchester Police [1989] ICR 373.)  There is no equivalent provision in the 1995 Act to Section 17 and 16 of the 1975 and 1976 Acts respectively.  

6	Mr Davis has drawn our attention to Section 65(5) of the 1995 Act which expressly provides that Part II of the Act does not apply to service as members of the Ministry of Defence Police, the British Transport Police, the Royal Parks Constabulary or the United Kingdom Atomic Energy Authority Constabulary.  He submits that since MPS are not included in that category, they are not excluded from the protection of Part II.  We cannot agree.  We think that those excluded categories are specifically referred to in order to bring them in line with those holding the office of constable who are not covered by the definition of employment in Section 68(1).  Hence, para 2(7) of the Code of Practice issued under the 1995 Act which repeats the well-settled position that “police officers are excluded from the employment provisions of the 1995 Disability Act”.

7	Finally, we should mention the case of Kenny –v- Hampshire Constabulary [1999] IRLR 76 which Mr Davis submits shows that the police service is subject to the 1995 Act.  However, Mr Kenny was an applicant for civilian employment with the Hampshire Constabulary and therefore for employment within the meaning of Section 68(1).  That was not a case dealing with a police constable.  Thus, from whatever angle Mr Davis approaches his difficulty, the statutory provisions are, in our view, clear.  He is not protected by Part II of the 1995 Act.  Why police officers should be expressly included for protection under the Race and Sex Discrimination legislation, but not for the purposes of the later Disability Discrimination legislation is unclear to us without reference, perhaps, to the Hansard report of the debates in Parliament, but our firm conclusion is that the Chairman was correct in law and that, accordingly, this Appeal must be dismissed.