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Alejandra Tascon reviews the case of R (on the application of the Commissioner of Police of the Metropolis) v Police Misconduct Panel[2025] EWHC 3110 (Admin).
Dr Seuss wrote: “I meant what I said, and I said what I meant”. Regulators must take note of this certainty when drafting and presenting cases before Tribunals, as we can see from the case of R (on the application of the Commissioner of Police of the Metropolis) v Police Misconduct Panel [2025] EWHC 3110 (Admin).
The Commissioner of Police for the Metropolis (‘the Claimant’) brought an application for judicial review to challenge the Police Misconduct Tribunal’s (‘the Tribunal’) decision on Police Sargeant Paul Hollis.
Following a disciplinary hearing, a Tribunal found PS Hollis to have committed gross misconduct by breaching the Professional Standards of “Authority, Respect and Courtesy” and “Discreditable conduct”. In considering the case against PS Hollis, the tribunal found that his actions did not amount to harassment, under s.26 of the Equality Act 2010. Therefore, he was found not to have breached the “Equality and Diversity” standard.
As a result, the Tribunal imposed a final written warning.
In this application, the Claimant argued two grounds:
1) The decision that PS Hollis had not breached the Professional Standards of Equality and Diversity, was unlawful and/or irrational; and
2) The decision to impose a final written warning was unlawful and/or irrational.
In summary, the Court found that the Tribunal had not erred in finding that there had been no breach of the Equality and Diversity standards as the case had been predominantly put on the basis of his conduct amounting to harassment, contrary to s.26 of the Equality Act 2010, and not that it was discriminatory language.
PS Hollis was referred to the Misconduct Panel in respect of two separate occasions where he was said to have made inappropriate comments to Designated Detention Officers (‘DDOs’). The Allegations were drafted as follows:
“Allegation 1:
Being a serving member of the Metropolitan Police Service, in around July 2022, whilst on duty, you had a conversation with DDO Sadler about her leaving early from work. At the time, DDO Sadler was roughly 16 weeks’ pregnant and had been allowed to go home early on the date in question because she was suffering from back pain. As part of that conversation, you said the following to DDO Sadler: “you getting special treatment because you laid back like a whore”, or words to that effect. At the time of this remark, you were aware that DDO Sadler was pregnant.
Allegation 2
2. Being a serving member of the Metropolitan Police Service, on 4 September 2022, you were on duty as acting custody support inspector. The team members also on duty at that time included DDO Salici. At 12:05 you sent a WhatsApp message to DDO Salici stating the following: “I can still smell your clunge in the back office”. At the time, you and DDO Salici both understood the term “clunge” to mean “vagina”.
3. In the premises, by reason of the matters above, either individually or collectively, it is contended that your behaviour does not meet the standards required by the Standards of Professional Behaviour set out in Schedule 2 of the Police (Conduct) Regulations 2020, specifically in respect of the following standards:
i. Authority, Respect and Courtesy.
ii. Equality and Diversity.
iii. Discreditable Conduct.
4. As a result of your behaviour as set out above, your conduct singularly or in its totality amounts to Gross misconduct.”
The matter was considered by the Tribunal over a two-day hearing. During the hearing, PS Hollis admitted both allegations although he maintained that he could not recall using the word “whore”. In doing so, PS Hollis accepted that he had breached the standards of “Authority, Respect and Courtesy” and “Discreditable Conduct”. He denied that his behaviour was a breach of the “Equality and Diversity Standard”.
In opening the case to the Tribunal, the Regulator’s case was that PS Hollis’ behaviour constituted unlawful discrimination on the ground that it amounted to harassment under s.26 of the Equality Act 2010, in relation to the protected characteristics of sex and pregnancy. It was on the basis of harassment that the Regulator had submitted put PS Hollis in breach of the “Equality and Diversity” standard.
In opening, the Regulator did not submit that PS Hollis’ comments alone discriminated unfairly towards the two DDO’s in breach of the “Equality and Diversity” standard without reference to the Equality Act 2010 breach.
In closing, the Regulator’s submissions centred around harassment. It was only in their concluding remarks that the Regulator stated the following:
[18] …“So, for those reasons, the Regulator invites you to find all three standards breached, including the equality and diversity standard. Even if you do not consider section 26 of the Equality Act is made out, you could still make a finding of a breach of the equality and diversity standards because it is (Inaudible) that he acted unfairly in the circumstances.”
In response, the to the alternative proposition, Mr Morris, who was representing Mr Hollis, stated:
[19] …“Equally the appropriate authority’s suggestion that even if section 26 of the Equality Act is not engaged there might just be a further breach of standard of equality and diversity I am afraid to say is misconceived. Neither DDO suggested that they had, in fact, been unfairly treated by this officer in any discriminatory way. Both of them explained that they understood the officer to be making a joke, but they did not actually feel badly treated by the officer. The way the equality and diversity standard is set out in schedule 2 of the Conduct Regulations is to focus on action. Are you treating individuals impartially or unfairly, perhaps favouring one individual because of a protected characteristic or adversely treating an individual because of protected characteristic? Neither of them complained that this officer was treating them unfairly as you sometimes find in other cases where two individuals embark upon a romantic relationship. The relationship goes badly and then the individual is treated badly. There is nothing of that kind here. So there is no adverse treatment. There is no unfair treatment in that case.”
The Tribunal went on to find that PS Hollis had not breach the “Equality and Diversity” standard, finding no harassment under s.26 of the Equality Act 2010. The Panel accepted PS Hollis’ admissions of the two standards of Professional Conduct, namely “Authority Respect and Courtesy” and “Discreditable Conduct” and went on to find that they amounted to gross misconduct. The Tribunal then imposed a final written warning, instead of dismissal.
The parties’ submissions on appeal can be found at paragraphs 33 to 44 of the judgment. They can be summarised as follows:
On ground 1, the Claimant argued that when the Tribunal found that they had not been satisfied of unfair discrimination “for the same reasons” as the findings of harassment, under s.26 of the Equality Act 2010, the Tribunal fell into error. The Claimant argued that the Tribunal’s application of the “Equality and Diversity” standard should not have been circumscribed by the subjective views of the putative victims. It was submitted that the use of the discriminatory language itself could constitute a breach of the “Equality and Diversity” standard because it was language which failed to treat people with respect; and whilst it might not offend the Equality Act 2010, it was still discriminatory by nature.
Finally, the Claimant argued that the court should not focus on passages in which the “alternative” case was put but at the overall way in which it was pleaded and argued.
In response, the Interested Party submitted that whilst he did not dispute that discriminatory language could amount to a breach of the “Equality and Diversity Standard”, this was not put to him during the hearing (see paragraph 42 of the judgment). It was further submitted that PS Hollis was entitled to know how the case against him was being put and the case now being put was not the case that was advanced before the Tribunal. Therefore, the Court ought to concern itself only with how the case was put during the Misconduct Hearing.
On ground 1, whilst it was open to the Tribunal to find that PS Hollis had breached the “Equality and Diversity” standard through the use of discriminatory language, the Court found that the Tribunal had not erred in law because that was not how the case had been presented by the Regulator (see paragraph 45 of the judgment). The case by the Regulator had been predominantly put on the basis of harassment under s.26 of the Equality Act 2010 – stating that its consideration as to whether or not there had been a breach of the “Equality and Diversity” standard would “turn on” s.26 of the Equality Act 2010. Nowhere in the opening note or transcript showed a case being advanced that PS Hollis could be in breach of the standard without reference to the Equality Act breach.
Therefore, both the Tribunal and PS Hollis were entitled to proceed on the basis upon which the case was presented. Ground 1 therefore failed.
On ground 2, the Court took the view that the Tribunal had adequately arrived at the outcome considering seriousness, culpability, harm aggravating features and mitigating features before considering personal mitigation. The Tribunal rightly considered that personal mitigation has a “limited” impact in police misconduct hearings. Therefore, any criticism that excessive weight was placed on personal mitigation is deemed to have been misplaced.
Overall, the Court took the view that there was no inadequacy of analysis by the Tribunal that amounted to an error of law. Therefore ground 2 also failed.
The application for judicial review was dismissed.
A few important lessons can be learned from this case:
The drafting of allegations/charges is something that has been criticised by the High Court before in the case of Adil v GMC [2023] EWHC 797 (Admin). In Adil, Swift J commented on the vague nature of some of the charges against Mr. Adil stating that they were not formulated expressly by reference to the Good Medical Practice Guidance or the GMC’s Social Media Guidance (see paragraph 18). Swift J went on to say that “where the professional standard alleged to have been contravened arises from Good Medical Practice or guidance the GMC has issued; it is advisable to refer to the relevant provisions in the statement of charges”. This principle is one that ought to be borne in mind by all regulators to avoid ambiguity and confusion.
The case of PS Hollis shows that you need to get the case presentation right the first time and cannot try to advance a different argument at a later stage (even if a conclusion on that argument was open to the Tribunal all along).
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