New EAT Decisions

The following cases have been placed on the EAT website in the last 24 hours. They are not yet officially reported, but may be appear in the law reports in due course.

The Chief Constable of Cumbria v McGlennon (Mr Commissioner Howell QC, 15/7/02)

An important case on whether the Liversidge principle applies to sex discrimination claims.

Chief Constable of Bedfordshire v Liversidge (Court of Appeal, currently being appealed to the House of Lords) provides that the Race Relations Act 1976 does not make the chief constable of a police force liable for racial harassment upon a police officer by other officers in his command. The decision is based on the literal interpretation of the liability sections of the Race Relations Act 1976.

It has been unclear whether the same bar applies in sex discrimination claims because, although the wording of the SDA 1975 is identical, it must be interpreted in accordance with different principles, i.e. in accordance with the Equal Treatment Directive.

The EAT has now held in McGlennon that the answer is the same, and that a chief constable is not primarily liable for acts of sexual harassment by one officer against another. Nor can the Applicant rely on the direct effect of the Equal Treatment Directive.

However, the EAT goes on to say that where the discriminatory act is an administrative one, being done by a subordinate officer on the chief constable's behalf (as in this case, where the issue was a transfer from one police station to another), then the act (i.e. the decision to transfer) can properly be said to be that of the chief constable himself - and thus liability exists.

I am involved in a number of these cases and cannot comment further (for fear my opponents will print off what I say and use it against me!). This case is mandatory reading for anyone with a sex discrimination claim against the police.

The Chief Constable has been given permission to appeal to the Court of Appeal (although I understand he has not yet decided whether to pursue an appeal).


Morton v School Pictures International (HHJ Peter Clark, 17/5/02)

It is not mandatory for an issue which is raised in the IT1 to be formally determined by a tribunal, if it is not actively pursued during the course of the tribunal hearing.