The Chief Constable of Avon and Somerset challenged the decision of the Police Misconduct Tribunal made on 12 December 2019, following a hearing of a charge of gross misconduct brought against Police Constable Pauline Archer. In a judgment handed down in April 2021 Mrs Justice Steyn held in the High Court that the Tribunal's decision to issue a final written warning, instead of dismissing a police officer whom it had found guilty of gross misconduct, was not irrational. Although the officer had used a racist term while on duty, there was extensive evidential support for the Tribunal's conclusion that her use of it was an unintentional aberration in respect of which she had shown real insight and accepted full responsibility.
It is not widely appreciated that police constables, along with the security services, do not generally (with a very few exceptions for cases of discrimination and whistleblowing) enjoy protection from unfair dismissal under the Employment Rights Act. The Police Misconduct Tribunal serves a similar purpose to the Employment Tribunal, albeit with very different procedures.
What is interesting about this case is the light it sheds on the difficulty of assessing the degree of seriousness and harm caused by the use of offensive language, especially language which goes beyond “industrial” and strays into racism, sexism or the ridicule, harassment or abuse of those with other protected characteristics.
Police officers, perhaps rightly so, are held to a higher standard of conduct and probity than members of the general public. But many employers will have workplace policies which are designed to promote equality, respect and diversity which are phrased in similar ways to the relevant sections of the Police Standards of Professional Behaviour, often with a warning that there will be a zero-tolerance approach or that deliberate breach may amount to gross misconduct. So a dismissal or final written warning will often be on the table when employers face complaints of the use of offensive language by employees.
The Tribunal in the Archer case said this:
“We do take notice of the fact that the words used are considered derogatory and extremely offensive. The Ofcom reference guide describes the term used as the strongest language and highly unacceptable without strong contextualisation. This is representative of standards on television and radio and we should not look to accept a lesser standard from a serving police officer, especially on duty.”
The Ofcom Reference Guide to public attitudes towards offensive language deserves to be better known and all HR Managers should become familiar with it. It is available from Ofcom following this link:
We repeat the warning which is given that the guide contains highly offensive language and discussion of content which may cause offence. Some may find parts of it are also surprising.
The task of employers in ensuring that employees and others are not exposed to language which is offensive or inappropriate is perhaps harder than ever.
