IN POLICE SERVICE?
Police officers cannot make claims for unfair dismissal at
Employment Tribunals in England and Wales.
It has been argued that this is, in part, because police officers are not employees,
rather that they are individual holders of the office of constable. This argument is specious. Holders of the office of constable in Non
Home Department Police Forces (NHDPFs) are employees of the organisation that
maintains the constabulary of which they are members. It is well established that if there is a
conflict between being an employee and being a constable, the office trumps the
job. Even in the British Transport
Police officers are both constables and employees. This is not as a result of some ancient
legislation but was a question considered as recently as 2003 in the lead up to the creation of a Police
Authority for the force. BTP and CNC
officers are employees of the statutory authorities which maintain their
forces. Prior to 2003 BTP offices were
employed by the British Railways Board, even if they served (and were paid for)
elsewhere in the transport system (eg London Underground). The point is that nobody ever saw that being
employed caused a problem or a conflict with holding the office of constable.
Officers of all forces can bring claims in relation to
discrimination, whistle blowing etc so the employment status distinction is, to
some extent, meaningless. But how far
does the prohibition on bringing unfair dismissal claims extend?
Most definitions regarding the police can be found in the
Police Act 1996. It is this Act that
makes it clear that NHDPFs are not ‘police forces’ for most legal
purposes. Therefore it is necessary for
legislation to positively include those forces when it is intended that powers
or responsibilities should be extended to them. Thus, we behold a complex web of law
relating to NHDPFs that is neither in the interests of the police or the
public.
In the same year as the Police Act passed into law another
important piece of legislation hit the statute book. The Employment Rights Act 1996 was
groundbreaking in many ways and in section 200 it made explicit the rule that
unfair dismissal would not apply to those in police service. The section defines police service as:
In subsection (1) “police service” means—
(a)service as a member of a
constabulary maintained by virtue of an enactment, or
(b)subject to section 126 of
the Criminal Justice and Public Order Act 1994 (prison staff not to be
regarded as in police service), service in any other capacity by virtue of
which a person has the powers or privileges of a constable.
Members of NHDPFs are members of constabularies (ie bodies
of constables) maintained by virtue of an enactment, and therefore in police
service for the purposes of employment law – even if they are not members of a police
force within the meaning of the Police Act 1996.
It is unlikely that parliament meant to capture all NHDPF in
this provision but the wording is pretty clear – and has withstood the scrutiny
of the courts.
This interpretation has been challenged several times.
In a 2024 case before the Employment Tribunal a member of
the Port of Dover Police made a claim for unfair dismissal against the Dover Harbour
Board. The claim was struck out as a
preliminary issue on the basis that the former officer was in police
service. The Tribunal pointed out:
“The Dover Harbour Police
(sic) are maintained under an enactment, the Harbours, Docks and Piers Clauses
Act 1847. It follows that he was in
police service and that section 200 applies to his case………………….it is also clear
that (he) had the powers and privileges of a constable” (i)
In coming to its conclusion the Tribunal followed the
caselaw on the subject.
From what I can see the first time this came to the
attention of the courts was in a BTP case. In Spence v British Railways Board
[2001] the claimant was a BTP Detective Sergeant of long standing. The Employment Appeals Tribunal (EAT)
overturned the decision of the Employment Tribunal and made clear that BTP
officers were covered by section 200 of the Employment Rights Act 1996. (ii)
The issue came before the Court of Appeal when two ex
officers of the Parks Constabulary of the London Borough of Redbridge (iii) attempted
to claim for unfair dismissal. In a
complex case (one officer had been dismissed because of his conduct towards the
other) the Employment Tribunal had accepted that members of the parks police
were in fact ordinary employees of the council carrying out security and low
level crime prevention duties, albeit with constabulary powers. It was pointed out that the officers were
employees and that the parks police service did not have the structures
(including a federation) that were to be found in Home Department, or large Non
Home Department Police Forces. The EAT
ruled that the claim could not proceed because the former officers were in
police service within the meaning of s200 of the Employment Rights Act
1996. The parks police were attested under
Article 18 of the 1967 Greater London and Open Spaces Order confirmed by the
Ministry of Housing and Local Government Provisional Order Confirmation
(Greater London Parks and Open Spaces) Act 1967 (not a piece of legislation
that trips off the tongue). This was
enough to bring them within the definition.
The claimants appealed to the Court of Appeal and in a very detailed
judgement Jackson LJ described the legislative background and considered the
different types of police force that exist and their relative status. He rejected the argument that constables
serving outside the Police Act forces were not ‘real’ constables:
….such
distinctions exist, they do not mean that regular police officers are ‘real’
constables, whereas officers patrolling the Redbridge parks are not. A police officer is undoubtedly one species
of constables, but he/she is not a paradigm or template with which others
claiming to be constables should be compared.
As set out in Part Five above, there are many different forms of
constable. Some are employees. Some are not.
Nevertheless they all hold the office of constable” (para 54)
The court ruled that the EAT was right to dismiss the claim:
parks police are in police service for the purposes of the Act. However the judges made it clear that they
did so with a regret because the law denied these officers any remedy for
unfair dismissal. Longmore, LJ went on
to say :
“Like
my Lord I can see no reason why constables who are Council employees (or indeed
employees of any other employer) should have no protection from being unfairly
dismissed. I would urge parliament to
consider the matter whether with or without the assistance of the Law
Commission” (para 76)
Within a short space of time the point came up again at the
Court of Appeal, this time before the Master of the Rolls. In this case the officers were from the
Wandsworth Parks Police (iv). The
officers were supported by their union and were appealing against the decision
of the EAT which had decided that they were not allowed to make a claim for
‘ordinary’ unfair dismissal. There was
also an issue about the applicability of Articles 8 and 14 of the ECHR. Again, the court upheld the principle that as
they were in police service they could not claim unfair dismissal. The court added:
“We would urge the government
to reconsider the position as a matter of urgency”. (para 79).
One might have thought that comments made by senior judges
might have some influence when this type of law is reviewed. I have asked several government departments
what plans they have to change the law – or at least to consider the suggestion
that a change is necessary. One of the
background challenges for NHDPFs is that there is no single source of
government level oversight. To date only
the Department for Transport has replied and they have no work under way in
connection with this issue. There are two
Bills currently going through Parliament that could have been the vehicle for
change , viz the Employments Rights Bills and the Crime and Policing Bill but
both are silent on the question of employment rights for constables who do not
have the protections available to ordinary employees or the legislation that
covers constables in service in the Home Department forces.
The Redbridge and Wandsworth Parks Police were both
abolished. However in Wandsworth they
were reformed as the Parks and Event Police and are still sworn in the same way
as their predecessors.
The restrictions on claiming unfair dismissal remain and
touch on all NHDPFs.
I will update this blog if I find anything else about
government plans in this regard.
Nov 2025
It is very hard to talk about the role of NHDPFs without
looking at the law. The legal background to NHDPFs is complex and
therefore I should remind anyone reading this is that I am not a
lawyer. I am certainly not qualified to offer any advice on
legal subjects. The views expressed are my own. I do
offer a consultancy service on NHDPFs but legal advice must be sought from a
qualified (and I would suggest specialised) lawyer.
NOTE: The Royal Parks Police were disbanded by the Serious Organised Crime and Police Act 2005 (s161). The Royal Parks Operational Command Unit of the Metropolitan Police was disbanded in 2025 as a result of budget cuts.
i.
David Lane V Dover Harbour Board [2025]
Employment Tribunal 230399/2023
ii.
Spence v British Railways Board [2001] ICR 232
iii.
McKinnon v The London Borough of Redbridge
[2014] EWCA Civ 178
iv.
Vining V London Borough of Wandsworth [2017]
EWCA Civ 1092
No comments:
Post a Comment