Practice and Procedure


PUBLISHED June 6, 2003

At an internal police disciplinary hearing for sex discrimination, the applicant was allegedly cross-examined in an inappropriate manner by counsel. The applicant argued that the board's failure to curtail the cross-examination amounted to sex discrimination. A question arose as to whether the board enjoyed absolute immunity from suit.Applicant's appeal against a decision of an employment tribunal on 25 January 2002 that a police disciplinary board hearing enjoyed immunity from suit. The applicant presented a complaint to the employment tribunal for unlawful sex discrimination against an inspector at her police station. At the request of the respondent, the proceedings were stayed pending the outcome of a disciplinary hearing. The disciplinary board consisted of three male commanders. At the hearing, the applicant gave evidence and was cross-examined. In particular, she was asked to demonstrate how the inspector had allegedly fondled her breasts. Consequently she launched a second complaint (stayed on a separate issue) on the basis that the board had subjected her to sexual harassment in their conduct of that hearing by failing to control the cross-examination. A question arose as to whether a disciplinary hearing held under the Police (Discipline) Regulations 1985 SI 1985/518 was a quasi-judicial proceeding such as to entitle the board conducting it to immunity from suit in relation to the manner in which it was conducted. The employment tribunal held that the board enjoyed absolute immunity and on that basis dismissed the application. The applicant appealed.HELD: (1) It was clear from the dicta of Lord Esher in Royal Aquarium and Summer and Winter Garden Society Ltd v Parkinson [1892] 1 QB 431, that there was absolute immunity in respect of statements made in the course of proceedings before a court of justice, whether by the judge, counsel, or witness. That immunity extended to any authorised inquiry which, though not before a court of justice, was before a tribunal with similar attributes. (2) The question in the present case was whether the hearing had similar attributes to a court of justice so as to enjoy absolute immunity. In Trapp v Mackie [1979] 1 WLR 377 Lord Diplock identified four questions which had to be considered in deciding whether an inquiry had similar attributes to a court of justice: (i) was the tribunal recognised by law; (ii) was the nature of the question that the tribunal was examining similar to the types of issues which arose in the courts of justice; (iii) was the procedure adopted at the tribunal akin to that in the courts of justice, and; (iv) was the decision reached by the tribunal legally binding. All four were met in this case. (3) The essential features of the disciplinary hearing rendered it closely analogous to a judicial proceeding before a court of justice. The employment tribunal were correct in their conclusion that the disciplinary hearing enjoyed the same absolute immunity as did proceedings before a court of justice. There was no error of law in that conclusion. (4) The argument that the Sex Discrimination Act 1975 said nothing to the effect that tribunals would enjoy any such immunity in respect of claims brought under that Act held no weight. The rule was a long-standing one of public policy.Appeal dismissed.