Appeal No.	 EAT/10/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 March 2002
8 & 9 May 2002
Judgment delivered on 15 July 2002

Before
MR COMMISSIONER HOWELL QC
MR I EZEKIEL
MS G MILLS

THE CHIEF CONSTABLE OF CUMBRIA	APPELLANT

MR T M McGLENNON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G POWELL
(of Counsel)
Instructed By:
Mrs Margaret Longworth
The Cumbria Police Force
Carleton Hall
Penrith
Cumbria 
CA10 2AU	
For the Respondent	MR S SWEENEY
(of Counsel)
Instructed By:
Ms R Buzzard
Messrs Russell Jones & Walker
Solicitors
4th Floor
Earl Grey House
Grey Street
Newcastle Upon Tyne
NE1 6EF	

MR COMMISSIONER HOWELL QC:

Introduction: the issues in the appeal

1	In this case the Appellant, the Chief Constable of Cumbria, seeks to have set aside as wrong in law the decision of the Carlisle Employment Tribunal set out in a reserved decision with Extended Reasons sent to the parties on 31 October 2000, upholding complaints of sex discrimination and victimisation made in two originating applications by the Respondent Mr Terence McGlennon, a serving police officer in the Cumbria force.

2	In their decision, which was given after hearings on 27 to 31 March 2000, deliberations on 18 May 2000 and further written submissions made by both sides at the invitation of the Tribunal after that, the Tribunal held that decisions taken by Mr McGlennon’s superior officers on two occasions about where he was to be posted to carry out his duties had amounted in the first instance to unlawful direct discrimination against him as a male police officer, and in the second to victimisation, both contrary to the Sex Discrimination Act 1975, and that the Chief Constable (who was the only respondent to the originating applications) was liable under that Act to Mr McGlennon for both.  

3	The original grounds of appeal, on which the case was directed by the Appeal Tribunal at the preliminary hearing on 5 June 2001 to proceed to full hearing before us, alleged that the Tribunal’s conclusions on both direct discrimination and victimisation were based on errors in law: in misapplying the burden of proof, failing to make and identify sufficient findings on material issues of fact, and reaching conclusions for which there was no or no sufficient evidence.   In aid of these contentions on both issues, the lapse of time between the conclusion of the hearings at the end of March 2000 and the production of the Tribunal’s Extended Reasons in October of the same year was relied on.  

4	That relatively self-contained set of issues on the appeal was afterwards overtaken by the much broader and more fundamental contentions raised on behalf of the Appellant in his supplemental Notice of Appeal, which (with the support of counsel and solicitors for Mr McGlennon) we allowed to be added by amendment.  These concerned whether the Tribunal had acted within their jurisdiction at all in entertaining complaints of sex discrimination made by a police officer against his chief constable, when the decisions relied on were not alleged to have been those of the chief constable himself, but those of subordinate officers in the force which was under the chief constable’s general direction and control.  

5	Those issues were added in the light of the decision of the Appeal Tribunal in Chief Constable of Bedfordshire v Liversidge [2002] IRLR 15 given on 21 September 2001, in which it was held under the corresponding Race Relations legislation that there was no liability on the part of a chief constable for individual acts of racial discrimination in the form of abuse alleged to have been perpetrated by one constable against another.  That, it was held, had to follow from the undisputed position under the general law that a police officer’s appointment does not make him a servant or employee, and from the strictly limited extent to which that principle was modified in the legislation enabling proceedings for discrimination to be brought at all by police officers for discrimination alleged to have been suffered in the course of their service.

6	The Appeal Tribunal was concerned in Liversidge only with the Race Relations Act 1976, and that Act has now been the subject of amending legislation to clear up the point: see the Race Relations (Amendment) Act 2000.  However no corresponding amendment to the Sex Discrimination Act 1975 has been introduced, even though the wording of the relevant provisions is identical; and we were told that the question whether the Liversidge principle had now to be applied in cases of sex discrimination was of immediate concern to police forces and tribunals up and down the country, as well of course as to any individual police officers wishing to bring such claims. We therefore considered it right to allow the scope of this appeal to be extended to the issue of jurisdiction (as indeed was done by the President and our colleagues in Liversidge itself, see [2002] IRLR 15 at para 24), even though it had not been argued below.  

7	The issues under this head, which were comprehensively argued before us by Mr Powell for the Chief Constable and Mr Sweeney for Mr McGlennon, were (first) whether the kind of decisions here in point - on where a constable is to be posted to carry out his duties - fell within the scope of the “acts done by” a chief constable for which a remedy against him is provided by section 17 Sex Discrimination Act 1975, by special exception to the rule that a constable does not normally count as an employee nor the chief constable his employer; and (second) if the domestic legislation looked at by itself gives no remedy, whether that is altered by the direct effect of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment and working conditions.  There is of course no corresponding directive that might have affected the position on race discrimination so it was common ground that at least the second question was a completely fresh one, not determined by the decision in Liversidge.

The facts

8	Mr McGlennon is an experienced Police Constable with over 20 years’ service in the Cumbria force, principally in rural beat areas.  He has a good record as an effective and tenacious officer of proven ability, thoroughly trusted and able to work and take decisions on his own without supervision.  He has promotion and educational qualifications well above his actual rank, and shortly before the events with which we are concerned in 1999 had successfully completed a period in the acting rank of sergeant at his home station, which his superior officers recommended should be continued at the divisional headquarters when the opportunity arose.  

9	At that time, the Cumbria force (whose headquarters is at Penrith) was divided into six geographical divisions, each under the command of a superintendent.  Mr McGlennon was serving in the police station at Egremont, one of three rural stations in the Whitehaven division.  The other two rural stations in the division were at Cleator Moor, and Millom, to which more reference will have to be made in a moment.  

10	The superintendent in charge of the Whitehaven division, which had its divisional headquarters station in Whitehaven itself, was Superintendent Garner. Under him was Chief Inspector Thwaites, the Operational Commander of the division.  Reporting to CI Thwaites were four inspectors:  Inspector Jayne Hall, who was the Divisional Support Inspector at Whitehaven having responsibility for staff matters among other things; Inspector O’Connell, who had responsibility for the rural section of the division and was based at Mr McGlennon’s own station at Egremont; and Inspectors Gibson and Backhouse, who shared responsibility for patrols and policing of Whitehaven itself.  The patrol force at each of the stations in the division was made up of uniformed police sergeants and constables, organised into teams reporting to the appropriate patrol inspector.  In the rural areas in particular the sergeants and constables would of course be working on their own for much of the time, and that was especially true of those posted to work at Millom which was an outlying station a long way from the others, by a difficult road.  

11.	There were few volunteers to go and work at Millom, and it was an unpopular posting among the officers in the division.  Postings to work there had to be made against officers’ own individual preferences, and caused Chief Inspector Thwaites (to whom decisions on posting were delegated by Superintendent Garner) and his support and patrol inspectors more than their fair share of difficulty in keeping the station manned and up to strength.  In addition to its remoteness, the Millom district suffered from some vandalism; and because of its proximity to a prison, the work there involved a good deal of drug-related offences and the need for searches among the visitors to the prison, many of whom were female. There was a general perception among officers in the division that Millom was a backwater from which it was difficult to get away, and that being sent there was unlikely to advance career prospects, if not an actual punishment.

12	It was a matter of objective fact, as found by the Tribunal, that relatively few female officers had been posted to Millom over the years.  At the time with which we are concerned, the two sergeants and eight constables posted to Millom (one short of the station’s full complement) did not include any female officers at all; and the Tribunal accepted evidence that this could cause difficulty with the statutory requirement that if a person has to be searched while in custody at a police station the search has to be carried out by someone of the same sex. The evidence from Mr McGlennon and some other male officers, and the basis of his complaint of discrimination, was that they considered the selection of officers for postings to Millom had for some time showed undue favouritism of their female colleagues.

13	We now come to the events which gave rise to Mr McGlennon’s complaints to the Tribunal.  In early 1999, he was settled and happy in his posting at Egremont, though going through a period of some strain in his personal life as his marriage was in difficulties.  It thus came as an unwelcome blow to him when on 25 February 1999 he was told by Inspector O’Connell (it appears in a rather abrupt way) that he was being immediately posted to Millom, along with another much more junior male officer, and had no choice in the matter.  

14	Mr McGlennon’s immediate reaction was to protest to Inspector O’Connell, which he did, and then to Inspector Hall, and to Superintendent Garner.  He mentioned, at least to Inspector Hall, the severe disruption this posting would cause to his attempts to hold his family together, since he had suffered a recent separation from his wife and his children were about to do exams.  Having either to move to Millom, or commute there some 35 miles each day, just at this point would make things nearly impossible for him. He was told however that the decision could not be changed.  

15	 Unhappily a combination of the transfer, which Mr McGlennon viewed as an indication that his career advancement was at an end, the way the news had been put to him, and no doubt the other difficulties he was going through in his life at the time, appears then to have triggered a stress reaction which prevented him being able to return to work at all the following day.  He remained off work sick through stress-related illness (accepted as perfectly genuine) from 26 February 1999 until by 12 April 1999 he had recovered sufficiently for his doctor to certify him as fit to return to normal duty the following week.  He informed the station at Egremont of this the same day, but was then told to report on his return to Whitehaven, not Egremont (where his belongings still were), or Millom (to which his formal posting still stood).  At Whitehaven on Monday 19 April, the officers there seemed surprised to see him, and he was asked what he had done wrong to deserve being sent there.  

16	The previous month while still away ill, Mr McGlennon had sent a Sex Discrimination Questionnaire to police headquarters at Penrith on 25 March 1999.  In this he asserted that in view of the disparity between male and female postings to Millom, the decision to post him there amounted to discrimination against him as a male officer and that women were given more favourable postings.  He had not however received any response to this (or even an acknowledgment) by the time he came back to work.  

17	On 11 May 1999, Mr McGlennon submitted his first Originating Application to the Tribunal, naming the Chief Constable as Respondent.  In this he alleged unlawful sexual discrimination against him in the decision to post him permanently to Millom on 25 February 1999.  He asserted that female constables were given the more attractive postings, saying that these allegations were true to the best of his belief, though made without the benefit of any reply to the Questionnaire previously submitted in which he had sought the relevant details for comparison.   On the same date he submitted a detailed grievance under the Force Grievance Procedure against Inspector O’Connell and the other officers he understood to have been involved in the decision to post him to Millom.  In it he alleged unfair treatment and sex discrimination, and also victimisation in his later transfer to Whitehaven after having submitted a Sex Discrimination Questionnaire to the chief constable while on sick leave.  

18	Also on 11 May 1999 Chief Inspector Bradford of Police Headquarters at Penrith wrote to Mr McGlennon giving the force’s response to the questionnaire.  This consisted of a letter setting out the detailed factual answers to certain specific questions, together with a standard form of acknowledgement and reply to such questionnaires, completed in manuscript (in the name of the Chief Constable) and signed by Superintendent Taylor, the head of Human Resources at the Force headquarters, dated some days previously on 26 April 1999.  

19	It is of some significance that in denying that sex discrimination had anything to do with Mr McGlennon’s posting to Millom, and saying that in fact female officers had been posted there, and to other rural stations, this document asserted that  “The Chief Constable has a legal power to post officers anywhere within the force in accordance with the exigencies of the service”.   Similarly, when on 3 June 1999 the Chief Constable entered a Notice of Appearance through the force solicitor to the first Originating Application, denying any discrimination against the Applicant in the posting to Millom, the first assertion this contained was that “The Chief Constable has the discretion to post his officers to any station within Cumbria for the purpose of facilitating the proper policing of Cumbria”.   The tribunal proceedings  thus began with, and were throughout based on, the implicit admission if not the positive assertion of fact that the act of posting Mr McGlennon to duties at Millom police station had been that of the Chief Constable: the only issue taken was over whether the reasons for it had anything to do with discrimination on the ground of sex.

20	Mr McGlennon’s second Originating Application was submitted on 15 July 1999, while his grievance was still being considered by the Assistant Chief Constable under the force grievance procedure.  In the second Application he alleged victimisation in his having been required to report for work at Whitehaven on his return from sick leave on 19 April 1999, saying he suspected this had been done “in reprisal for my having initiated proceedings under the Sex Discrimination Act 1975”.  By that he can only have meant the sending of his questionnaire on 25 March 1999, since of course his Originating Application to the Tribunal was not presented until 11 May.   Although the Tribunal in paragraph 2 of their Extended Reasons refer to it as a claim that he had been victimised “because he presented an originating application to the Employment Tribunal” it has for practical purposes been taken throughout as based on the service of the questionnaire in which discriminatory conduct in the transfer to Millom was alleged.  That is the only possible “protected act” for the purposes of section 4 Sex Discrimination Act 1975 that took place before Mr McGlennon was required to report for duty at Whitehaven instead of Egremont or Millom on his return from sick leave.  That was established by the evidence to have happened on 12 April 1999.

The tribunal decision 

21	The issues before the Tribunal on the facts were thus whether the decision to transfer Mr McGlennon to Millom on 25 February 1999 amounted to less favourable treatment of, and unlawful discrimination against, him as a male officer on the ground of his sex; and whether the decision on 12 April 1999 to require him to report for duty at Whitehaven on his return from sick leave amounted to detrimental treatment imposed on him by reason of his having submitted a questionnaire to headquarters alleging sex discrimination in the earlier decision.   

22	The unchallenged evidence before the Tribunal, and accepted by it, about who actually took these two decisions was as follows.  The first decision had been taken at a meeting on 25 February 1999 between Chief Inspector Thwaites and Inspectors Hall, O’Connell and Gibson, who between them had to decide on two officers within the division to be selected for posting to Millom against their own wishes, it being taken as axiomatic that there was no officer who would want to be posted there voluntarily.  These two postings had to be made on that date to replace two officers who had to be transferred out of Millom for what the Tribunal described as “pressing personal needs”.  The evidence of the four officers involved was that after a meeting lasting for at least an hour, Mr McGlennon who was an experienced officer and able to work on his own had been selected together with a more junior officer, this being considered a good operational combination.  There was no formally recorded appraisal process as between them the four officers at the meeting knew all the uniformed officers in the division personally, and were able to form a view on which ones would be suitable.  Inspector Hall’s evidence was that it came down to eight officers who fitted the criteria, of whom three were female.  As recorded by the Tribunal, the officers at the meeting said that if they had been more fully aware of the serious marital and personal difficulties being experienced by Mr McGlennon at that time he would probably not have been selected for the Millom posting for the time being at least.  There was thus no question of Mr McGlennon being the only possible choice, and it was not disputed that there were at least some female officers who had the right qualities and were suitable and could have been selected instead.

23	The decision to require Mr McGlennon to report at Whitehaven on return from sick leave on 19 April 1999 was shown, also by unchallenged evidence, to have been taken by Superintendent Garner and Inspector Hall together at a meeting on 12 April 1999 they both attended at Workington police station on that date.  This was an “Area Executive Meeting”,  the old Whitehaven division having by that time been reorganised into part of a larger area.  The minute of that meeting (at which sickness issues, intended moves, and budgets were discussed) was in evidence before the Tribunal and recorded that:

“Discussion took place re staffing levels at Millom.  One officer has been seconded from Workington to Appleby Fair.  On return from sick leave PC McGlennon will now be stationed at Whitehaven, this situation will be reviewed May/June 1999”.

24	Inspector Hall’s evidence was that the decision on where Mr McGlennon should report back had been made by Superintendent Garner and herself, both of them having equal knowledge of him, and was because there would be more support available for him in the larger station at Whitehaven on his immediate return from sick leave, his formal posting to Millom not having been withdrawn.  She categorically denied being aware at that time of any complaint or questionnaire by him under the Sex Discrimination Act, nor had Superintendent Garner ever mentioned this to her.  She only became aware the following month that a questionnaire had been sent to headquarters, when she was asked by them (at 24 hours’ notice) to provide the details which formed the basis for the replies in Chief Inspector Bradford’s letter of response dated 11 May 1999, and did so on that date.  

25	There was no evidence at all before the Tribunal that the officers who dealt with that questionnaire at headquarters took any part in the decision of 12 April 1999, or that they had communicated before that date with the officers who did.  Superintendent Taylor, the head of Human Resources who signed the reply form on 26 April 1999, gave written and oral evidence and was cross examined, but the Chairman’s note shows that it does not appear to have been suggested to him that his own or his department’s knowledge of the questionnaire played any part in the decision taken at Workington on 12 April 1999.   The considerably fuller note made by the force solicitor of Mr Taylor’s evidence records him as saying categorically that he was not involved in the transfer to Whitehaven, had taken no part himself in assimilating the information for the reply to the questionnaire, and had only been told about the decision to move Mr McGlennon to Whitehaven by Inspector Hall.  Again it does not seem to have been suggested to Superintendent Taylor that this evidence was untrue.

26	On the direct discrimination complaint the Tribunal held that the decision to impose the unpopular posting at Millom on Mr McGlennon and another male officer despite the absence of any female officers at Millom, and the availability of other officers both male and female who could have been selected as suitable for transfer there, coupled with the previous pattern of postings there, justified the inference that Mr McGlennon as a male officer had been selected for the posting instead of an equally suitable female officer because it was “easier to post a man”.  Consequently his selection instead of an equally qualified female officer for this disadvantageous posting amounted to less favourable treatment and unlawful discrimination. 

27	On the victimisation complaint, after referring to the questionnaire received at headquarters on 29 March 1999 and the details later supplied by Inspector Hall at short notice on 11 May (wrongly stated as 13 May) for Chief Inspector Bradford’s reply of that date, the Tribunal said:

“28  … The applicant returned to work on 19 April 1999.  We note that the decision to send the applicant to Whitehaven was made by Superintendent Garner.  He has not given evidence to the Tribunal.  There is confusion by the respondents as to exactly why the applicant was moved to Whitehaven.  …  
29  We find it quite extraordinary that no one at Whitehaven knew about the sex discrimination questionnaire.  In fact we do not accept that to be the case.  They must have known.  It is not credible to suggest otherwise.  This was an officer from the Whitehaven division.  He had submitted a sex discrimination questionnaire to the force headquarters.  To expect the Tribunal to accept that from 29 March 1999 until 13 May 1999, the date of Inspector Hall’s note, that Whitehaven did not know that a questionnaire had been submitted by the applicant is just unbelievable.  We are sure that the first thing headquarters did when they got the questionnaire was to raise it with Whitehaven.  The applicant did a protected act by submitting the questionnaire.  We accept that he was treated less favourably by his move from Egremont to Whitehaven.  There was no need for that move.  The explanation that it was for the applicant’s welfare is not in our view made out.  If this was correct the only people who knew that the move was for the applicant’s welfare were those that made the decision.  They did not communicate it to anyone else.  We are satisfied that the applicant was moved from Egremont to Whitehaven so that he could be more closely monitored because he had submitted a questionnaire.  The welfare reason was a later justification for the move.  Because of the lack of explanation the move was considered to be some sort of disciplinary move against the applicant in that he had done something wrong in some way.  People were questioning why he had been moved without explanation.  We are satisfied this was less favourable treatment.  We are satisfied that the less favourable treatment was because the applicant had submitted the questionnaire. …”

On that basis they held the Chief Constable liable for unlawful victimisation contrary to section 4 of the Act.  

The law: jurisdiction issues

28	The first question for us to consider on the amended appeal is, as indicated above, nothing to do with the way the Tribunal actually dealt with the issues on the case before them, but whether as a matter of jurisdiction they should have been considering those issues at all.  

29	This arises because of the special nature in English law of the office of a police constable, who is not an employee of anyone, and not a servant of anyone except the public.  That is a principle too well established to be capable of challenge: Fisher v Oldham Corporation [1930] 2 KB 364; Attorney General for New South Wales v Perpetual Trustee Company [1955] AC 457.  It is also well established that in exercising his powers as constable with regard to members of the public as an officer of the peace, a police officer acts on his own responsibility and authority, and not (in the absence of some special authority of a superior officer for some particular act) as agent for the Chief Officer of Police of the force in which he serves.  The general law of agency has no application to the original authority thus exercised as a peace officer:  see Farah v Commissioner of Police for the Metropolis [1998] QB 65.

30	Those general principles were not in any way disputed before us; and the first alone would of course prevent any complaint of sex discrimination being brought by a police officer under the provisions of the Sex Discrimination Act 1975 relating to discrimination in the field of employment, in the absence of special provision to bring him within their protection.  That special provision is in section 17 of the Act, (corresponding to section 16 of the Race Relations Act 1976 which was considered by the Appeal Tribunal in Liversidge) and it was on the extent of the protection it provides, and of the limited inroad it makes into the general principle in order to do so, that the argument before us turned.  

31	Section 17, under the heading  “Special cases”, provides by subsection (1) that:
“17  Police
(1) For the purposes of this Part, 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 office;
b)	by the police authority as respects any act done by them in relation to a constable or that office.”

There then follow special provisions about the extent to which police regulations may treat men and women differently in such matters as height or uniform requirements.  Subsections (4) and (5) go on to provide for proceedings under the Act against the chief officer of police under subsection (1) to be brought against the person performing the functions of that office for the time being; and for the payment out of the police fund of any compensation, costs or expenses awarded against a chief officer in proceedings brought against him under the Act, or any sum required by him for the settlement of a claim under the Act, provided that the settlement is approved by the relevant police authority.  

32	That section is in Part II of the Act (“Discrimination in the Employment Field”), starting with section 6 which under the heading “Discrimination by employers” makes it unlawful for a person, in the case of a woman or a man employed by him at an establishment in Great Britain, to discriminate against her or him in (among other ways) affording access to opportunities for promotion, transfer or training or other benefits, or by dismissal or subjecting the person to any other detriment.   Discrimination for this purpose includes both direct discrimination as defined in sections 1 and 2, and discrimination by way of victimisation as defined in section 4, so there can be no doubt that if the acts of which Mr McGlennon complained fell properly to be treated as acts done by the Chief Constable in relation to him for the purposes of section 17, the artificial treating of his own office of constable as “employment” under that section would make the Chief Constable potentially liable to proceedings under section 63 for unlawful discrimination contrary to section 6.

33	The only other material provision that needs to be looked at in this context is section 41, which appears not in the same part of the Act as section 17 but in Part IV (“Other Unlawful Acts”), and provides so far as material as follows:

“41  Liability of employers and principals
(1)	Anything done by a person in the course of his employment shall be treated for the purposes of this Act as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.
(2)	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 Act as done by that other person as well as by him.
…”

No reliance was placed on Mr McGlennon’s behalf on the next following section:

“42 Aiding unlawful acts”
(1)	A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act as himself doing an unlawful act of the like description.”

We think that an entirely correct concession by Mr Sweeney on the facts of this case.

34	As was held in Liversidge, and in our judgment is not open to dispute on the similar wording of the legislation before us, the way in which the normal rule about a police officer not being an employee is altered so as to enable a constable to bring a complaint of unlawful discrimination under the Act is strictly limited.  Specifically, the alteration is confined to the purposes of Part II (and not the interpretation of Part IV); and to acts by the chief officer or the police authority in relation to the constable or that office.  This has the effect that the normal employer’s imputed liability under section 41(1) for anything done by a person in the course of his employment, whether or not with the employer’s knowledge or approval, has no application.  Thus the chief constable cannot be held liable by this route (in the Appeal Tribunal’s judgment in Liversidge referred to as that of “constructive liability”) for unauthorised acts such as personal abuse or harassment by individual officers, however discriminatory those acts may be.  

35	That is the clear effect of the wording of the Act.  Whether or not so intended when it was originally drafted, there is no ambiguity about it: see the judgment of the Appeal Tribunal in Liversidge, and (now) that of the Court of Appeal confirming it: [2002] EWCA Civ 894, CA 24 May 2002, in particular per Peter Gibson LJ at para 56.  For the purposes of this appeal Mr Sweeney did not argue otherwise, but accepted that we should follow what was held in Liversidge unless that decision was overturned in the meantime by the Court of Appeal: as noted above, it has now been confirmed.  

36	The argument before us therefore concentrated on the two issues of whether there was any ground for distinguishing Liversidge’s case, which was solely concerned with individual acts of racial abuse perpetrated by one constable on another so that in no sense could they be said to have involved any express or implied authority from the Chief Constable or to have counted as acts “by him” for the purposes of the wording in section 17; and if not, whether the provisions of the domestic legislation should be effectively overridden by the European Council Directive so as to reverse the Liversidge result.  

37	On the first of these issues we have concluded that Mr Sweeney’s arguments are to be preferred, and that Mr Powell was wrong in contending as he did that the result in Liversidge precludes any possibility of a complaint of unlawful sex discrimination being made by a police officer against a chief constable unless based on an act of harassment or other discrimination committed by the chief constable personally.  In our judgment this comes down in the context of the kind of decisions at issue in this case, on posting and deployment of officers within a force which Parliament has laid down is to be under the direction and control of the chief constable under section 10 Police Act 1996, to a simple question of statutory construction: are such actions, taken on decisions actually made by subordinate officers further down a devolved chain of command of which the chief constable is at the head, within the intendment of “any act done by the chief officer of police in relation to a constable” in section 17, or not?  

38	In our judgment, the words “any act done by him” in section 17(1)(a) 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 10 of the Police Act, but in fact taken and carried out under his authority by other officers at the appropriate level in the chain of command. We see no reason in this context to exclude the operation of section 41(2) cited above, 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 section 17.  It would be an absurd intention to impute to Parliament that the special provisions it enacted in section 17 to enable proceedings to be brought by police constables for unlawful discrimination, for the payment of awards and costs out of police funds, and for the continuity of proceedings against the chief officer for the time being, were introduced solely for the purpose of dealing with the personal discriminatory conduct of individual chief constables. 

39	In using the words “any act done by him” Parliament must we think be taken to have had in mind instead what Lord Denning said about the position of a chief constable in R v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 QB 118 at 136:

“I hold it to be the duty of the Commissioner of Police of the Metropolis, as it is of every Chief Constable, to enforce the law of the land.  He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace.  He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought. … The responsibility for law enforcement lies on him.”;
and, in conjunction with that, the most basic centuries-old principle underlying the whole of the law of agency, that where a person does something through another, the act is seen in the eyes of the law as his own:  qui per alium facit, per seipsum facere videtur:  Co.Litt. s.433, 258a, Broom’s Legal Maxims, 10th Edn, 558.  In our judgment therefore the acts for which proceedings may be brought by a constable against the chief officer by virtue of section 17 include management decisions on posting such as those at issue in this case.

40	We reach that conclusion, as we have said, by applying ordinary domestic principles of statutory construction to the words used in section 17.  However insofar as they might be thought to give rise to any ambiguity such as to justify reference to other material, we are reinforced in our conclusion that they are intended to include individual decisions on police recruitment and posting made in the ordinary way within the force, by what was said in the House of Commons on 18 June 1975 by the government minister responsible for what was then the Sex Discrimination Bill.  In response to a proposed amendment to take out the then clause 17 altogether, and replace it with a provision that the Act should not apply to service or employment in any police force, she said:

“Under the Bill and in general terms, it will no longer be possible for chief officers to discriminate between men and women in recruitment, postings, selection for training or promotion.  In each case applicants will be considered solely on the basis of qualifications required for the particular post, and the best person, man or woman will be selected.”

(Dr Shirley Summerskill, Under Secretary of State for the Home Department, 1974–5 HC Deb 5s Vol 893, col. 1487:  see also Lord Harris of Greenwich, 1 July 1975 362 HL Deb col 100):

“Under the terms of the Bill, the police will have to consider applications for posts solely on the qualifications required for the service or for the particular post, and select the best one, man or woman.”

41	In our judgment therefore on the true construction of section 17 Sex Discrimination Act 1975 the parties and the Tribunal were right in law in the collective assumption they all made that the Tribunal had jurisdiction to deal with Mr McGlennon’s complaints of sex discrimination in the decisions taken about his posting.  We have not been persuaded that any of the authorities cited to us point to any different conclusion.  In particular, in their judgment in Liversidge itself, now confirmed by the Court of Appeal, the Appeal Tribunal were careful to make clear that the decision was confined to the question of what Lindsay P referred to as the Chief Constable’s “constructive liability”:  that is the basis of liability it was sought to establish against him via section 41(1) for the alleged racist conduct of individual constables, there being on those facts no question of actual authority for the acts complained of.  

42	That limit on what the Appeal Tribunal were deciding in Liversidge appears from paragraphs 30 to 32 of the judgment, which say explicitly that in that case there was no question of agency for the Chief Constable, or of the acts complained of being done with his authority; and paragraph 14, where it is recorded without disapproval that the complainant’s separate allegations of victimisation (in the bringing of disciplinary charges against her: see paragraph 4) were to continue and were unaffected by the outcome of the appeal, without any suggestion that it was essential for that purpose that the disciplinary procedure should have been invoked by the chief constable personally.  

43	That the Liversidge decision does not exclude the possible liability of a chief constable for acts done under his actual authority on normal agency principles has since been expressly acknowledged in the Court of Appeal where the decision was upheld.  Peter Gibson LJ who gave the leading judgment said at paragraph 49, dealing with an argument that the exclusion of a chief constable from the “constructive liability” of a normal employer under section 41(1) would remove all protection for a police constable under section 17:

“ I agree that the effectiveness of the protection for constables is diminished if section 41 [sc. section 41(1)] does not apply … and if the deemed employer is only liable for acts done by him. But … it cannot properly be said that such a construction leaves section 17 without utility. Under section 13(3) of the 1996 Act the Chief Constable makes appointments and promotions to any rank below that of Assistant Chief Constable. Under section 69 of that Act he has wide powers in respect of complaints against officers … Under the Police Regulations 1995 he has power to appoint part-time officers. Under the Police Conduct Regulations he has the power to suspend officers … Under the Police Efficiency Regulations 1999 he acts as a reviewing body if a sanction for poor performance is imposed.  No doubt he will be able to delegate some of the functions, but he may himself be liable under section 41(2) of the 1975 Act as principal.”

The later references in paragraph 71 of the same judgment to the general principle that a constable in his normal public duties “is not the agent of the Chief Constable”, and in the concurring judgments of Jonathan Parker LJ at paragraph 79 to “acts done by him” being “not capable … of including an act not done by him”, and of Longmore LJ at paragraph 92 to Parliament not having intended to make a chief constable responsible for the acts of his subordinates, must in our judgment be read subject to the reservation thus made in paragraph 49 for acts within delegated authority, and cannot be taken as implying that it does not exist. 

44	A similar reservation is to be found in the authority mentioned by Peter Gibson LJ in paragraph 71 for the general principle, Farah v Commissioner of Police for the Metropolis [1998] QB 65.  Mr Powell relied on that case as authority that there could be no question of agency such as to give rise to any liability of the Chief Constable on the facts before us; but   the statement to which he referred by Otton LJ at page 85E-F, that “In my view the concept of principal and agent is inimical to the status of a police constable”, was quite plainly made only in the context of the individual constable’s authority and actions as regards members of the public in his capacity as peace officer.  That it cannot have been intended to exclude the possibility of normal agency principles applying to acts done, not in exercise of a constable’s original authority in virtue of his own office, but on the (express or implied) actual authority of the chief constable and on his behalf, is shown by Otton LJ’s own reference in the passage which follows at 85H-86B to Hawkins v Bepey [1980] 1 WLR 419, where he said that:

“The plaintiff in the present case could only bring herself within section 32(2) if she were able to prove that a police constable acted as he allegedly did on the express, or implied, authority of a senior officer.  In which case the act precedent or consequent would then be treated as done by that superior officer as well as by the constable. She does not allege this.”

Section 32(2) of the Race Relations Act 1976, to which Otton LJ was there referring, is the exact counterpart to section 41(2) of the Sex Discrimination Act 1975 with which we are concerned.  

45	That such authority and agency is recognised as a matter of law to exist through the chain of command as regards functions vested by statute in the Chief Constable is established by Nelms v Roe [1970] 1 WLR 4.  There it was held that an inspector purporting to issue a notice of behalf of the chief officer of police requiring information about a road traffic offence, having been instructed to deal with such matters by his superintendent though without any express authority from the chief officer, had implied delegated authority from the chief officer to issue the notice by reason of the superintendent’s rank and responsibility for administration.  Nothing we were shown gives us any ground to think any different principle should be taken as applying to decisions on such matters as posting taken at superintendent or inspector level, or as excluding such decisions from what count as acts of the chief officer within the scope of section 17(1)(a) Sex Discrimination Act 1975.

46	That makes it unnecessary for us to determine the further issue on the direct effect of Council Directive 76/207/EEC raised in response to the amended Notice of Appeal, but in deference to the full argument we received on this we will express our conclusions on it briefly.  For this purpose we assume, without deciding, in favour of Mr Sweeney’s argument on behalf of Mr McGlennon that a police officer is a worker or employee within the personal scope of the Directive, and that a breach of its provisions is involved in a discriminatory decision on whether a man or a woman is to be sent to an unpopular posting.  It would also appear to follow from the decision of the European Court of Justice in Coote v Granada Hospitality [1999] ICR 100 that an act of victimisation arising out of a complaint made about a discriminatory posting could also be a breach of the Directive’s general provisions even though it contains no express mention of victimisation, though again we do not need to decide that for the present purpose:  we will simply assume it in favour of Mr McGlennon.  It is also necessary to assume for this purpose that our conclusion in his favour on the construction of section 17(1)(a) is wrong, so that no question of agency can arise in relation to the decisions complained of and that in accordance with Liversidge the domestic legislation precludes a claim on any other basis.  

47	On that footing, the provisions of the domestic legislation being as held in Liversidge clear (and free of the kind of ambiguity that enabled the Appeal Tribunal in Coote v Granada to adopt a different construction between the two sets of similarly worded legislation so as to make the 1975 Act conform with the Directive: [1999] ICR 947 at 948 E-H), there is in our judgment no separate remedy that can be pursued before the Employment Tribunal by virtue of the Directive alone.  As is now well established, the Employment Tribunal is a body which has no inherent jurisdiction, and it is limited to dealing with complaints brought within the special statutory jurisdiction conferred on it by the Act:  see Staffordshire County Council v Barber [1996] ICR 379, per Neill LJ at 395 A-G, approving what was said by Mummery J (as he then was) in Biggs v Somerset County Council [1995] ICR 811, 830.  

48	Nor in our judgment can it be argued that the difficulties in the way of a police constable bringing such a claim can be overcome by saying that they are a “barrier” within the domestic legislation that has to be disregarded and disapplied as being incompatible with directly effective Community rights; which is the exception acknowledged by Mummery J and the Court of Appeal to that basic proposition.  The reason that a police officer whose claim is outside the limited scope of section 17 is unable to bring discrimination proceedings against the chief constable under the Act is nothing to do with any procedural or qualifying barrier of the kind referred to by Mummery J, inhibiting the exercise of a right the Act otherwise provides.  It is the much more fundamental one that under the general law of England and Wales a police officer is not an employee at all, and so is outside the protection of the provisions about discrimination in employment altogether in the absence of express positive provision to extend “employment” to him or her artificially.  The direct effect of the Community instrument confers no separate jurisdiction on the Employment Tribunal to alter a police officer’s status in law, or create new positive rights or remedies for discrimination outside those the legislation provides.  If there is any infringement of the Directive, that is a matter for Parliament or possibly for a Court having inherent jurisdiction, but not something for the Employment Tribunal.

Original issues on the appeal

49	We turn at last to the issues on the actual decision in this case which were raised in the original Notice of Appeal and set down for full hearing before us.  Mr Powell’s attack on the Tribunal’s finding of direct discrimination in the posting to Millom focused in particular on the Tribunal’s references at more than one point to what they described as the operational need for a female police officer to be at the station if detainees were to be searched while in custody there.  Mr Powell submitted that this was manifestly wrong as a matter of fact, and the evidential conclusion that there was such an operational need was unjustified.  That in his submission invalidated the conclusion on direct discrimination, in view of the weight obviously placed on the point. In his oral argument, he disclaimed reliance on the other specific points earlier taken on alleged inadequacies in the Tribunal’s treatment of the evidence as separate errors of law in their own right, though they did in his submission add weight to the general contention under this head that the Tribunal had materially misdirected themselves on the effect of the evidence, an impression strengthened by the length of time the reasoned decision had taken to produce.  

50	We have not been persuaded that what the Tribunal said about the difficulties in searching female suspects at Millom police station without a female police officer present was materially incorrect as a matter of fact, or showed that they misdirected themselves as to the effect of the evidence.  We think Mr Sweeney was right in saying that they were substantially correct in what they said:  as explained in the judgment of the Appeal Tribunal in West Yorkshire Police v A (No.2) [2002] ICR 552 at 559D-E, it is a requirement under section 54 Police and Criminal Evidence Act 1984 that a search of a detained person in custody is to be carried out by a constable of the same sex as the person searched; and there are further restrictions under section 55 on intimate searches of the kind that may be called for when possible drug offences are involved.  

51	We do not think on a fair reading of what the Tribunal said in paragraphs 26 to 27 of their Extended Reasons that this was the only point that led them to their conclusion, though it was obviously regarded as an important one.  But the weight to be attached to it or any other fact shown by the evidence was of course a matter for them, not us; and we have not been satisfied they fell into error of law in taking it into account in the way they did.  We remind ourselves that the decision for us is not of course what conclusion we would ourselves have formed on the evidence before the Tribunal, so far as it has been explained to us.  Instead what we have to consider in this context is whether there was material before the Tribunal from which they could properly have reached the conclusions they did, and whether those conclusions are based on adequate findings, adequately explained.  

52	The Tribunal correctly directed themselves in paragraph 23 of their extended reasons on what was required for a finding of direct discrimination, and we see no ground to infer that when they came to consider the facts they overlooked this, or misapplied any burden of proof.  There is no lack of clarity in their finding that there was a difference in treatment, between Mr McGlennon who was posted to Millom against his will, and at least one other equally well qualified female police officer who was not; and that was in any case undisputed fact.  Whether on that basis, and given the historical disparity also shown in the evidence between the numbers of male and female officers posted there, it was right to draw the inference of some discrimination in this particular selection was a matter for the Tribunal.  

53	We cannot say that there was no material before the tribunal to justify such an inference, though we do record that in none of the material we have been shown is there any ground at all so far as we can see for any suggestion that the officers who actually took these decisions (and in particular Inspector Hall) did so other than conscientiously and professionally, or acted from any deliberate bias against Mr McGlennon or in favour of female officers.  He was, unfortunately for him, a particularly suitable choice to be sent to a rather difficult outlying station because of his own uncompromising standards, long experience, and proven ability to work on his own.  But it has to be remembered that discrimination for the purposes of the Sex Discrimination Act 1975 stems from the fact of a difference in treatment between the sexes, so that it may include even an unconscious (or what in other contexts might be viewed as merely benevolent) allowance for women’s assumed family responsibilities and other difficulties which is not automatically accorded to men; and it may be that the Tribunal had no more than this in mind when they said in paragraph 27 of their extended reasons that 

“We have to form a view that the female officers were preferred to the male officers.  The preference arose because of the nature of the posting to Millom and its accepted disadvantages. It was easier to post a man”.  

54	If that was the fact as they found it to be, then the result was a preference between men and women which was contrary to the provisions of the Act whether or not it was conscious. The conclusion they thus reached, as the Tribunal of fact charged with determining such matters, is not in our view something with which this Appeal Tribunal can interfere.  

55	On the Tribunal’s further conclusion in paragraph 29 of their Extended Reasons, that the decision taken by Inspector Hall and/or Superintendent Garner on 12 April 1999 to require Mr McGlennon to report for duty at Whitehaven the following Monday on return from sick leave had been shown to amount to victimisation as a result of his sex discrimination questionnaire, we have however concluded that Mr Powell’s submissions are correct and that this part of the Tribunal’s decision cannot be allowed to stand.  In our judgment there was a clear failure by the Tribunal here to identify in their decision the factual basis for the conclusion they reached.  That is something of particular importance in discrimination cases where much may depend on inferences drawn, and it is therefore even more than usually important to be clear about the facts from which one is drawing them:  see Anya v University of Oxford [2001] ICR 847 for a recent general confirmation of this established principle.  

56	As was made clear by the House of Lords in Nagarajan v London Regional Transport [2001] 1 AC 501, to constitute unlawful discrimination by way of victimisation the acts complained of need not have been consciously motivated, but it is essential that the causative link between the protected act relied on and the act or acts complained of as victimisation be identified and found.  Thus for practical purposes in the present case, it had to be shown that Inspector Hall and/or Superintendent Garner had been made aware by someone by 12 April 1999 of the fact that Mr McGlennon had submitted his sex discrimination questionnaire to headquarters the previous month; alternatively if they were not so aware, that their decision to require him to report for duty at Whitehaven had been induced in some way by a person who was.  

57	As noted above there was no evidence before the Tribunal to show or suggest that anyone outside headquarters at Penrith was so aware until well after 12 April 1999.  Superintendent Taylor who was in charge of the department dealing with the questionnaire (which had not even got around to sending Mr McGlennon an acknowledgment before he went back to work) seems never even to have been asked about this crucial issue.  Inspector Hall’s own evidence was categoric that she did not herself know, and what she is recorded as saying gave no ground for any assumption that Superintendent Garner had any more knowledge than she did, or that it was he that initiated the decision rather than her.  The extent to which the Tribunal did or did not accept her evidence is however not spelt out at all in their decision.

58	Instead, their conclusion rejecting the evidence on behalf of the Chief Constable on this issue is expressed in the entirely general, and we have to say speculative, terms that “They [sic] must have known”, without identifying which officers they were finding as a fact to have had such knowledge, and from where.  In our judgment the conclusion on this issue thus erred in depending too much on generally expressed suspicion, and too little on clear findings of proved fact on who it was knew what, and how the Tribunal were satisfied any such knowledge had fed into the decision made on 12 April 1999, so as to have been the cause of it for the purposes of amounting to discrimination by way of victimisation under section 4 of the 1975 Act.  

59	The apparent lack of focus in the Tribunal’s stated reasons on this issue (particularly unfortunate as their finding appears clearly to imply deliberate deception on the part of at least one police officer, though without saying which) is we think also shown in paragraphs 28-29 by the references to dates and events which, there can be no dispute, happened well after 12 April 1999 when the decision about where he was to report had been made: a note or memorandum Inspector Hall made on 11 or 13 May, and a meeting between the applicant and Superintendent Taylor about the grievance he submitted only on 11 May 1999.  There is however no reference in either of those paragraphs to what the position was on 12 April 1999, or why those later events were considered to be relevant to the alleged victimisation on that date.  

60	In our judgment therefore the Tribunal have failed sufficiently to address in their stated reasons the material questions on causation on which express findings were essential before a conclusion of victimisation could be drawn, and for that reason their conclusion on that issue has to be set aside.

61	We do not think it necessary to consider as a separate issue the question raised in the original Notice of Appeal on the delay of some months between the conclusion of the Tribunal hearing and the issuing of their Reserved Decision.  That could have been an issue, if there was some disputed question of fact on which a finding made by the Tribunal was open to challenge:  but in the end Mr Powell’s submissions on the “operational needs” aspect of the Tribunal’s decision on direct discrimination did not found on this as a separate point.  In that we think he was right, because the basic requirement under the Police and Criminal Evidence Act 1984 to have a police officer of the same sex present if a person in custody in a police station is to be searched there was not open to dispute:  see above.  

Conclusion

62	For the reasons given above, we hold that the Tribunal were right to proceed on the assumption that they had jurisdiction to deal with Mr McGlennon’s complaints and we therefore dismiss the additional grounds of appeal raised in the Chief Constable’s amended Notice.  We also dismiss his appeal in the original Notice against the Tribunal’s first finding of direct discrimination in the decision to transfer Mr McGlennon to Millom on 25 February 1999, but allow it on the second, against the Tribunal’s finding of victimisation in the decision of 12 April 1999 to require him to report for duty at Whitehaven on return from sick leave.  

63	We set aside the Tribunal’s decision on that second issue, and remit to a fresh Tribunal for reconsideration and redetermination the whole of Mr McGlennon’s original complaint of victimisation.  That will include the question of whether, in being required to report at Whitehaven rather than in accordance with his still subsisting posting to Millom, Mr McGlennon was being detrimentally treated at all; and in particular if the only detrimental aspect of such treatment was that identified by Mr McGlennon’s evidence and referred to by the previous Tribunal in paragraph 29 of their Extended Reasons (namely the assumptions and the comments about it made by individual colleagues afterwards, which were not of course something for which the Chief Constable can be held responsible because of Liversidge) whether that alone could bring the decision of 12 April 1999 into the scope of section 4 if it was not so otherwise – a question on which we have heard no argument, and express no view.  The new Tribunal which will determine the victimisation issue afresh must have regard to the new provision about burden of proof in section 63A Sex Discrimination Act 1975 which has applied from 12 October 2001 to any proceedings, whenever instituted.

64	The appeal is allowed accordingly on that issue.  At the conclusion of the argument, each side made a putative application for leave to appeal against any aspect of our reserved decision should it be against them. We give the Chief Constable leave to appeal to the Court of Appeal, if so advised, as the major issue of principle of his potential liability under the Sex Discrimination Act 1975 for management decisions taken by his subordinate officers on such matters as recruitment and posting is one of general importance to the police service, and we understand a number of other cases to be affected.  The other points on the way the tribunal dealt with the facts of this case would not in our view have warranted the attention of the Court of Appeal by themselves.