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03/09/2003

Chief Constable of Kent v Baskerville

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COURT OF APPEAL

Appeal by the Chief Constable of Kent Constabulary ('K') from the decision of the Employment Appeal Tribunal ('EAT') dated 14 April 2003 that the employment tribunal ('ET') had been correct to refuse to strike out the claimant's ('B') claim under the Sex Discrimination Act 1975. B was a serving police officer who claimed sexual discrimination. The ET refused to strike out B's claim on the basis, inter alia, that the originating application was not misconceived as at the date it was issued but only became arguably so in the light of the decision in Chief Constable of Bedfordshire Police v Liversidge (2002) ICR 1135, where an analogous claim under the Race Relations Act 1976 was barred on the basis that on a proper construction of the statutory material a chief constable was not vicariously or constructively liable in respects of a complaint by an officer based on acts of discrimination by other officers because an officer was not an employee but a holder of a public office. The EAT held that the ET had been correct not to strike out the claim but on the different basis that ss.17 and 41(2) of the 1975 Act had to be interpreted in a purposive manner so as to give effect to the Equal Treatment Directive 76/207/EEC ('ETD') and that K was liable for the discriminatory acts of his juniors when performing delegated management functions. On the present appeal, K argued that: (i) s.17(1) of the 1975 Act should be construed literally so that K could only be liable for his own acts and not those of sub-ordinates; (ii) accordingly, the liability imposed by s.41(2) of the 1975 Act on a principal for the acts of his agents had no application to s.17(1); (iii) in the alternative, s.41(2) of the 1975 Act only applied to specific acts of delegation and not to everyday management decisions; and (iv) all the grounds the EAT had relied upon to conclude that the claim should proceed to a full hearing were erroneous.

HELD: (1) Whilst s.41(2) of the 1975 Act did not create a relationship of agency but merely described the circumstances in which it would exist, on a proper construction of the legislation s.41(2) of the 1975 Act applied to s.17(1) of it. If acts were done by police officers as agents of K, those acts had to be done by K. It was not necessary to consider the ETD. (2) Parliament must have intended that the decisions of police officers could be delegated to sub-ordinates in the interests of administrative convenience. (3) It was not the court's function to determine whether the particular acts in the instant case had been performed by officers acting as agents for K. It was sufficient that the court was not in a position to say that s.41(2) of the 1975 Act could not apply.
Appeal dismissed.

John Cavanagh QC and Sophie Garner instructed by and for K. Robin Allen QC and Michael Ford instructed by Russell Jones & Walker for B.

LTL 4/9/2003 EXTEMPORE : (2003) ICR 1463 : Times, September 10, 2003

Document No. AC0791463

[2003] ICR 1463; Times, September 10, 2003
DISCRIMINATORY ACTS,COA,AGENCY RELATIONSHIP

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