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Austin v. Chief Constable of Surrey Police


High Court (Administrative Court)

The claimant (W) applied for judicial review of a decision of a temporary assistant chief constable purporting to terminate his employment as a police officer pursuant to the Police Regulations 2003 reg.13 and of a decision of the defendant chief constable upholding that termination. W had been informed by the temporary assistant chief constable that his services as a police officer would be dispensed with and his employment would cease on the day that his probationary period, as provided for under the Regulations, came to an end. The Regulations did not provide for an appeal against the decision but the Surrey Police Force operated a system whereby a probationer who was subject to dismissal could appeal to the chief constable. W exercised that right and an appeal decision was reached, the appeal having been postponed for a period at W's election whilst the chief constable was on leave, some two months after W's probationary period was due to expire. The chief constable dismissed W's appeal on the basis that he was satisfied on all of the information available to him that W was not a person likely to become an efficient or well conducted constable. W contended that (1) the temporary assistant chief constable had no power to make the decision to dispense with his services as a decision to dispense with the services of a constable under reg.13 had to be made by the chief constable himself; (2) the effect of the Regulations was that if a probationary period came to an end and no lawful decision had been made to dispense with a constable's services, he was automatically confirmed as a full constable.
HELD: (1) It was clear from R v Chief Constable of Greater Manchester Ex p Lainton (2000) ICR 1324 CA (Civ Div) that under the Regulations a decision to extend a period of probation was a decision that was delegable by a chief constable to an appropriate subordinate but that a decision to remove a probationary constable was not, so that such a decision had to be reached by the chief constable himself, Carltona Ltd v Commissioners of Works (1943) 2 All ER 560 CA, Golden Chemical Products, Re (1976) Ch 300 Ch D, R v Chief Constable of North Wales Ex p Evans (1982) 1 WLR 1155 HL, R (on the application of Chief Constable of the West Midlands) v Birmingham Magistrates Court (2002) EWHC 1087 (Admin), (2002) Po LR 157, and DPP v Haw (2007) EWHC 1931 (Admin), (2008) 1 WLR 379 considered, Lainton applied. (2) Regulation 13 provided that a probationary constable whose services were being disposed of was entitled to 28 days' notice or payment in lieu. The decision to dispense with the services of a probationary constable could be made at any stage of the probationary period and undoubtedly would often be at or towards the end of it. If the 28 days extended beyond the end of the probationary period, it would at the least be strange if the result of such an extension was an automatic progression for a probationary constable to becoming a full constable. Accordingly, albeit no-one explicitly determined an extension of W's probationary period, as was required by reg.12, such a determination was implicit. (3) It was clear that the chief constable's decision was based on a full consideration of the merits of W's case and was one that he was entitled to reach on the material before him. The chief constable's reasons were satisfactory and his decision was lawful. The appropriate exercise of the court's discretion was to award W 28 days' pay in lieu of notice after the date of the chief constable's decision and to pay between the date of the decision of the temporary assistant chief constable and the date of the decision of the chief constable.
Application granted in part.
Michael Ford appeared for the Claimant.

[2010] EWHC 266 (Admin)

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