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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Burrows v Abbey Labels & Packaging Ltd (Redundancy Payment) [2019] NIIT 03084_19IT (01 October 2019)
URL: http://www.bailii.org/nie/cases/NIIT/2019/03084_19IT.html
Cite as: [2019] NIIT 03084_19IT, [2019] NIIT 3084_19IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 4182/18
CLAIMANT: Gordon Thomas Downey
RESPONDENTS: 1. Garrath McCreery
2. Chief Constable of the Police Service
of Northern Ireland
Certificate of Correction
The decision issued on 2nd October 2019 at the opening paragraph which reads;
“The claimant’s claims of direct discrimination, in respect of the enforcement of the CAPES policy, is well founded against the second respondent.”
is corrected to read;
“The claimant’s claim of direct discrimination, in respect of the enforcement of the CAPES policy, is well founded against the second respondent.”
Employment Judge:_____________________________
Date: __________________________________________
Amendments recorded in Register and issued to the parties on:
THE INDUSTRIAL TRIBUNALS
CASE REF: 4182/18
CLAIMANT: Gordon Thomas Downey
RESPONDENTS: 1. Garrath McCreery
2. Chief Constable of the Police Service of Northern Ireland
DECISION
The unanimous decision of the tribunal is that the claimant was discriminated against contrary to the Sex Discrimination (Northern Ireland) Order 1976. The claimant’s claims of direct discrimination, in respect of the enforcement of the CAPES policy, is well founded against the second respondent. The claimant’s claim of direct discrimination against the first respondent is dismissed. The claimant’s claim of indirect discrimination, in relation to the promulgation of the policy, is well founded against the second respondent. The claimant’s claim of indirect discrimination against the first respondent is dismissed. The claimant’s claim of victimisation against both respondents is not well founded and is dismissed. A declaration and recommendation is made as set out in this decision.
CONSTITUTION OF TRIBUNAL
Employment Judge: Employment Judge Gamble
Members: Mr T Carlin
Mr E Gilmartin
APPEARANCES:
The claimant was represented by Mr N Phillips, of counsel, instructed by Worthingtons Solicitors.
The respondents were represented by Miss R Best, of counsel, instructed by the Crown Solicitor’s Office.
BACKGROUND
1. The following background is common case between the parties. The claimant is a Constable in the Police Service of Northern Ireland (PSNI) and is attached to the Armed Response Unit (ARU). The claimant has extensive experience within the PSNI, having joined the former RUC in November 1995. The ARU is an elite unit within the PSNI and responds in situations where lethal force or potentially lethal force could potentially be used.
2. On 7 January 2018 the Uniform and Protective Measures Committee (UPMC) within the PSNI introduced a policy which revised and set out certain minimum standards for dress and appearance within the PSNI. It also identified equipment to be worn in compliance with health and safety legislation. This policy was entitled the Corporate Appearance and Protective Equipment Standard (CAPES). On 7 January 2018 PSNI published the CAPES policy, which included a new policy on facial hair. Assistant Chief Constable Gray’s email, which circulated the new policy to all staff, stated the primary policy aim, which was “protecting Officers and staff who wear Respiratory Protection Equipment (RPE) on a regular basis. This relates solely to officers in certain specialised roles and has been subject to robust consultation with PSNI internal stakeholders including Health & Safety Branch, Equality & Diversity Unit and Police Federation for NI.”
3. Section 1.3 of CAPES included: “Some police officers/police staff occupy roles where there is routine respiratory exposure to occupational hazards. These officers/staff members may be required to wear Respiratory Protection Equipment (RPE) at short notice and must therefore always remain clean shaven whilst on duty.” This was the iteration of the CAPES policy at the relevant time when the actions which are the subject matter of the claimant’s complaint occurred. (Tribunal’s emphasis.)
4. On or around 20 February 2018 the wording at section 1.3 was revised as follows: “Some police officers/police staff occupy roles where there is a routine possibility of respiratory exposure to occupational hazards. These officers/staff members may be required to wear Respiratory Protection Equipment (RPE) at short notice and must therefore always remain clean shaven whilst on duty.” (Tribunal’s emphasis.) However, by this time the claimant had already been advised that he was to be transferred out from his unit on the basis of the application of the original iteration of CAPES policy to him.
5. The claimant and his colleagues within the ARU had been issued with Respiratory Protection Equipment (RPE) in the form of an Avon FM12/S10 respirator some years before the promulgation of the CAPES policy, but the claimant, and a number of his witnesses, maintained that he had not been trained in the use of RPE by PSNI, that he did not carry RPE and that he had never been required to deploy whilst using RPE at any time in the past. The FM12 is a “full-face” type respirator which provides protection against a range of risks including chemical, biological, radiological and nuclear (CBRN) and CS gas (depending on canister used).
6. FM12 full face type respirators are not the only form of RPE deployed by the PSNI. The claimant’s uncontroverted evidence was that at the time of the introduction of the CAPES policy and the consequent action, which gave rise to his complaint to the tribunal, neither he nor other members of his unit had been supplied with half face FPP3 particulate filters. The ARU was one of a number of specialist units which the PSNI deemed to be subject to the RPE provisions of section 1.3 of the CAPES policy, requiring officers to be clean shaven.
7. Prior to December 2017 the claimant wore a beard. In anticipation of the introduction of the new policy the claimant shaved off his beard and retained a moustache.
8. It is a recognised health and safety requirement that users of RPE require to be tested periodically to ensure that the RPE functions as intended on the individual wearer. This testing is referred to as “porta-counting” or “fit testing”. The claimant was porta-counted in respect of his FM12 respirator on 11 December 2017, whilst wearing his moustache, and passed. This is because the length and style of his moustache at that time did not interfere with the seal or the valves of the respirator. In order for RPE to function as intended, it is necessary for a good seal to be achieved with the individual wearer’s face. It is accepted by all the parties that facial hair in the area of the mask seal may interfere with that seal and thus prevent the RPE from functioning as intended.
9. However, the claimant does not accept that the safe use of RPE required the removal of all facial hair, whereas the policy promulgated by PSNI required the removal of all facial hair, including moustaches.
10. The claimant was also appointed as a Federation representative for the Police Federation of Northern Ireland (PFNI) for the ARU with effect from the end of
January 2018. On or about 1 February 2018 the claimant was contacted by a federated member of his unit who had been ordered by his line management to shave off his beard to achieve compliance with the new Policy. That officer declined to do so and as a consequence he was informed on or about 2 February 2018 that he would be moved to alternative duties in roads policing with effect from Tuesday,
6 February 2018. This move to alternative duties would comprise a change of station, unit and shift.
11. On Friday, 2 February 2018 the claimant met with his Inspector and his Sergeant at 11.00 am. The claimant was asked if he intended to shave off his moustache. The claimant declined to do so. The claimant was informed that if he didn’t shave off his moustache he would be transferred out of the ARU. The claimant again declined to do so and handed his Inspector a document entitled “Direct Discrimination against me by the PSNI”. This document was treated as a grievance complaint. Following his refusal to remove his moustache, the claimant was informed that he was being transferred to roads policing with effect from Tuesday, 6 February 2018. He was also advised that he could not complete his rota shifts for the ARU in the interim.
12. The claimant did not report for his new duty on 6 February 2018, having commenced a period of sickness absence. He remained on sickness absence until he returned to duties within the ARU on Wednesday, 14 March 2018, having agreed to remove his moustache.
13. The claimant presented a claim to the Industrial Tribunal on 19 February 2018 in which he alleged that he had been unlawfully discriminated against by the respondents contrary to the Sex Discrimination (Northern Ireland) Order 1976.
14. The claimant made claims of direct sex discrimination, indirect sex discrimination and victimisation. The respondents resisted the claimant’s claims in a response dated
20 April 2018.
15. The claimant’s claim of direct sex discrimination consists of the assertion that he has been treated differently than female colleagues who are likewise in breach of the CAPES policy, in that he has been transferred/demoted, suspended from Firearm use, forced to withdraw his grievance and forced to shave off his moustache in February 2018, whereas those named female colleagues have not been subject to such treatment in the enforcement of the CAPES policy. The claimant seeks to compare his treatment to that of two female officers within his unit, namely Sergeant Maguire and Constable White. The claimant relies on the provisions of section 1.2 ‘Hair’ of the CAPES policy which states: “In the interests of health and safety, hair should be worn so that it is cut or secured above the collar.” It was not disputed that both female officers had long hair which was not secured above the collar during ARU deployment, at the relevant time. Neither officer was subject to a requirement to cut their hair or face redeployment to alternative duties in consequence of the introduction of the new CAPES policy. The respondents do not accept that these officers are appropriate comparators, whose relevant circumstances are the same, or not materially different, from those of the claimant.
16. The claimant also asserts that section 1.3 of CAPES is indirectly discriminatory against men and is not justified, as it is not a proportionate means of achieving a legitimate aim.
17. The claimant’s victimisation claim is that he was forced to withdraw the grievance he had lodged as a pre-condition of being allowed to return to active duty within his unit. The claimant relies upon the communication of his decision to shave, enquiries made on Chief Inspector McCreery’s instruction as to his intentions regarding his grievance and the subsequent delay in communicating to him the decision to allow him to return to duty. The grievance complaint itself is the protected act relied upon. The claimant had also referred to discrimination when notifying his superiors of his sickness absence on 2 February 2018.
18. The respondents contend that their actions were not discriminatory. It is contended by the respondents that the action taken against the claimant was on grounds of his non-compliance with section 1.3 of the CAPES policy and to comply with PSNI’s health and safety obligations, and not on grounds of his sex. Further, PSNI asserts that if the policy was found to be capable of being indirectly discriminatory, it was nevertheless justified as a proportionate means of achieving a legitimate aim, and was necessary in order to comply with the requirements of Health and Safety law.
SOURCES OF EVIDENCE
19. The witnesses provided written witness statements which were adopted as their evidence in chief and witnesses were then subject to cross examination. The tribunal heard evidence from the claimant, Constable Kelly, Sergeant Leathem, Sergeant Buxton and Sergeant Maguire (one of the comparators) on behalf of the claimant. The claimant also adduced expert evidence in the form of a report by Richard Gates of Hazmat Control. As this report was not agreed between the parties, Mr Gates attended the tribunal in person and was cross examined on behalf of the respondents. The tribunal also heard evidence from Chief Inspector McCreery, Ms McCurdy (Equality Officer, PSNI), Ms Howell (at the relevant time HR Partner for Ops Support Department), Detective Chief Inspector Lewis (Chief Firearms Instructor, PSNI), Superintendent Foy, Constable Bunting (Combined Operational Training), Constable Orr (Chief Health and Safety Adviser, PSNI), Constable Smyth (CBRN Regional Support Officer) and Sergeant Dillon on behalf of the respondents. The tribunal also considered two lever arch files of documents which had been exchanged between the parties and which were provided to the tribunal.
20. The tribunal did not hear from Sergeant Murray who was not available to give evidence. The tribunal did not hear from Inspector Hamilton who provided a statement but was not called to the hearing. The tribunal was asked to disregard his statement, which has accordingly been disregarded.
21. The tribunal was not greatly assisted by the expert evidence of Mr Gates. Mr Gates gave evidence that he was a director in a commercial company which was a distributor of health and safety equipment, including RPE. In particular, Mr Gates admitted under cross-examination that he was not trained in porta-counting and had no expertise in the manufacture or testing of RPE equipment. He offered his opinion, which was not supported in his report by any excerpt from any policy, on the practice within British armed forces. Mr Gates’ opinion was that it was not possible for a well-kept moustache which was not longer than the mentolobial sulcus to interfere with the sealing or the valves of a respirator. Mr Gates’ report contained unreferenced images which he admitted he had downloaded from Google. Mr Gates gave evidence that he had sought the opinion of Major Wills on his draft report. He stated that he had deferred to Major Wills, a former Chief of Staff of “NATO Reaction Force 13”, given that he had experience in porta-counting and had worked at the Porton Down laboratories. Mr Gates, during cross examination, introduced for the first time an entirely new standard protocol which had not been mentioned in his report. This protocol was that PSNI officers should be allowed to retain a “grade 8 moustache”. He later admitted that he had made this suggestion “off the top of his head”. The tribunal was assisted by the parties’ inclusion of British Standard documents and Health and Safety publications within the bundle. The tribunal accepted the evidence of Mr Gates where it was supported by those standards and publications. In addition, a number of the respondents’ witnesses during their oral evidence agreed that it was not necessary to be completely clean shaven (i.e. free of a moustache or similar well kept facial hair not in the vicinity of the seal area) in order to achieve an effective seal on RPE.
22. The tribunal found that all of the other witnesses gave their evidence in a generally straightforward and consistent way, and this assisted the tribunal in considering the issues before it.
THE ISSUES FOR DETERMINATION BY THE TRIBUNAL
23. In advance of the hearing a statement of legal and factual issues for determination by the tribunal was agreed by the parties and is attached to this judgment. The tribunal does not consider it necessary to make a finding in respect of each and every factual issue listed in order to determine the claimant’s claims. Accordingly, findings of fact have been made only where necessary for the determination of the claims before the tribunal. The issues required the tribunal to consider only whether the second respondent was guilty of the alleged discrimination, namely direct discrimination, indirect discrimination and victimisation, notwithstanding that the claims were directed against Chief Inspector McCreery also.
24. At the submissions hearing, the claimant’s Counsel conceded that the chronology of the transfer did not support the claim that the claimant was victimised by being threatened with transfer as a result of having raised his complaints as set out in his grievance document dated 2 February 2018. Accordingly, the only victimisation claim being pursued related to the claimant’s withdrawal of his grievance following enquiry at Chief Inspector McCreery’s direction.
25. The respondents made the following concessions relating to the claim of Indirect Discrimination in Replies dated 17 October 2018:
“As regards the claimant’s request for additional information the respondents now provide further replies as follows:
Do the respondent’s accept that the CAPES policy constitutes a provision, criteria or practice applied to police officers within the ARU? If not, please confirm the factual basis upon which the respondent relies on to refute this.
The CAPES policy applies to all officers within the Police Service of Northern Ireland and not just those officers serving in the ARU. Section 1.3 of the policy headed “Facial Hair” applies to police officers or police support staff who occupy roles where there is a routine possibility of respiratory exposure to occupational hazards. This applies to units outside of the ARU.
Do the respondents accept there is a disparate impact on men in the ARU on the application of the CAPES policy, specifically section 1.3? If not, please confirm the factual basis upon which the respondent relies on to refute this.
The respondent’s accept that there is a disparate impact on men in the ARU on the application of section 1.3 of the CAPES policy.”
26. During the hearing, the tribunal had expressed its concern that a provision, criterion or practice (PCP) governing facial hair could be indirectly discriminatory, given that the growth of facial hair is a secondary sex characteristic for males, just as the development of breast tissue is a secondary sex characteristic for females. The respondents were given the opportunity to consider this concession and the submissions hearing was adjourned to facilitate this. It was recognised and acknowledged by PSNI in their EQIA assessment document that section 1.3 of the CAPES Policy affected “males only” (see paragraph 78.8 below). The respondents did not withdraw the concession referred to above, and informed the tribunal that they were content to stand by their stated position, thus confirming the applicability of the impugned section 1.3 to both males and females and confirming that there was a “disparate impact” within the pool of the ARU. Whilst this request and reply used the language associated with the traditional formulation of Indirect Discrimination, before the 2005/2011 amendment Regulations, the concession is clear and unambiguous. The tribunal has therefore made its determination of the Indirect Discrimination claim taking account of the respondents’ concession in this regard, the evidence before it and the legal and evidential submissions made on behalf of the parties.
SUBMISSIONS
27. The parties lodged written submissions and also made further oral submissions. The written submissions are attached to this decision. Where necessary, this decision summarises the relevant submissions and sets out the tribunal’s view regarding them. The tribunal is grateful to Counsel for their well-researched and helpful submissions, which were of much assistance to the tribunal.
FORMAT OF THIS DECISION
28. This decision sets out the relevant case law in respect of the direct discrimination, indirect discrimination and victimisation claims along with the relevant findings of facts in respect of these claims.
RELEVANT LAW
29. Sex Discrimination (Northern Ireland) Order 1976
Direct discrimination on the ground of sex
N.I.
3. In any circumstances relevant for the purposes of any provision of this Order, a person (“A”) discriminates against another (“B”) if, on the ground of sex, A treats B less favourably than A treats or would treat another person
Indirect discrimination on the ground of sex
N.I.
3A.—(1) In any circumstances relevant for the purposes of any provision of this Order, a person (“A”) discriminates against another person (“B”) if A applies to B a provision, criterion or practice which is discriminatory in relation to B’s sex.
(2) For the purposes of paragraph (1), a provision, criterion or practice is discriminatory in relation to B’s sex, if –
(a) A applies, or would apply, it to persons of a different sex,
(b) it puts, or would put, persons of the same sex as B at a particular disadvantage when compared with persons of a different sex,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
Sex discrimination against men
N.I.
4.—(1) The provisions of Parts III and IV relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite.
…
Discrimination by way of victimisation
N.I.
6.—(1) A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Order if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has—
…
(d) alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Order … ,
or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.
…
Basis of comparison
N.I.
7. Each of the following comparisons, that is—
(aa) a comparison of the cases of persons required for the purposes of Article 3,
(a) a comparison of the cases of persons of different sex under Article 3A,
(b) a comparison of the cases of persons required for the purposes of Article 4A or 4B , and
…
must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.
Office holders
N.I.
13B…
(3) It is unlawful for a relevant person, in relation to a woman who has been appointed to an office or post to which this Article applies, to discriminate against her—
(a) in the terms of the appointment,
(b) in the opportunities which he affords her for promotion, a transfer, training or receiving any other benefit, or by refusing to afford her any such opportunity,
…
(d) by subjecting her to any other detriment in relation to the appointment.
….
Burden of proof: industrial tribunals
N.I.
63A.—(1) This Article applies to any complaint presented under Article 63 to an industrial tribunal.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent—
(a) has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of Part III, …
…
the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.
Remedies on complaint under Article 63
65.—(1) Where an industrial tribunal finds that a complaint presented to it under Article 63 is well-founded the tribunal shall make such of the following as it considers just and equitable—
(a) an order declaring the rights of the complainant and the respondent in relation to the act to which the complaint relates;
(b) an order requiring the respondent to pay to the complainant compensation of an amount corresponding to any damages he could have been ordered by a county court to pay to the complainant if the complaint had fallen to be dealt with under Article 66;
(c) a recommendation that the respondent take within a specified period action appearing to the tribunal to be practicable for the purpose of obviating or reducing the adverse effect on the complainant of any act of discrimination to which the complaint relates.
(1A) In applying Article 66 for the purposes of paragraphs (1)(b), no account
shall be taken of paragraph (3) of that Article.
(1B) As respects an unlawful act of discrimination falling within Article 3A or Article 5(1)(b), if the respondent proves that the provision, criterion or practice in question was not applied with the intention of treating the complainant unfavourably on the ground of his sex or (as the case may be) fulfilment of the condition in Article 5(2), an order may be made under paragraph (1)(b) only if the industrial tribunal—
(a) makes such order under paragraph (1)(a) and such recommendation under paragraph (1)(c) (if any) as it would have made if it had no power to make an order under paragraph (1)(b); and
(b) where it makes an order under paragraph (1)(a) or a recommendation under paragraph (1)(c) or both) considers that it is just and equitable to make an order under paragraph (1)(b) as well.
Para. (2) rep. by SR 1993/478
(3) If without reasonable justification the respondent to a complaint fails to comply with a recommendation made by an industrial tribunal under paragraph (1)(c), then, if they think it just and equitable to do so,—
(a) the tribunal may increase the amount of compensation required to be paid to the complainant in respect of the complaint by an order made under paragraph (1)(b ), or
(b) if an order under paragraph (1)( b ) was not made , the tribunal may make such an order.
(4) Where compensation falls to be awarded in respect of any act both under the provisions of this Article and under any other statutory provision, an industrial tribunal shall not award compensation under this Article in respect of any loss or other matter which has been taken into account under that other statutory provision by the court in awarding compensation in an action in respect of that act.
Shifting the Burden of Proof
30. The proper approach for a tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof was reviewed and restated by the Northern Ireland Court of Appeal in the case of Nelson v Newry & Mourne District Council [2009] NICA:-
“22 This provision and its English analogue have been considered in a number of authorities. The difficulties which Tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a Tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the Tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the Tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the Tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a Tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.
23 In the post-Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the Tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-
‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the Tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’
That decision makes clear that the words ‘could conclude’ is not to be read as equivalent to ‘might possibly conclude’. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’.
24 This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”
31. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal in England and Wales considered the shifting of the burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment ‘without more’ was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-
“We agree with both counsel that the ‘more’ which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.”
32. The Supreme Court considered the statutory test in Hewage v Grampian Health Board [2012] IRLR 870. Lord Hope stated:
“29. In Igen v Wong, para 16, Peter Gibson LJ said that, while it was possible to offer practical help…, there was no substitute for the statutory language. And in Madarassy v Nomura International plc [2007] ICR 867, para 9 Mummery LJ emphasised that the Court of Appeal had gone out of its way in Igen to say that its guidance was not a substitute for statute. As he put it, “Courts do not supplant statutes. Judicial guidance is only guidance.” In para 11 he said that there was really no need for another judgment giving general guidance: “Repetition is superfluous, qualification is unnecessary and contradiction is confusing.” And in para 12:
“Most cases turn on the accumulation of multiple findings of primary fact, from which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts. It is vital that, as far as possible, the law on the burden of proof applied by the fact-finding body is clear and certain. The guidance in Igen Ltd v Wong meets these criteria. It does not need to be amended to make it work better.”
30. Nevertheless Mummery LJ went on in paras 56 and following of his judgment in Madarassy to offer his own comments as to how the guidance in Igen v Wong ought to be interpreted, which I would respectfully endorse. In para 70, having re-stated what the tribunal should and should not do at each stage in the two stage process, he pointed out that from a practical point of view, although the statute involved a two-stage analysis, the tribunal does not in practice hear the evidence and the argument in two stages:
“The employment tribunal will have heard all the evidence in the case before it embarks on the two-stage analysis in order to decide, first, whether the burden of proof has moved to the respondent and, if so, secondly, whether the respondent has discharged the burden of proof.”
31. In para 77, in a passage which is particularly in point in this case in view of the employment tribunal’s reference in para 107 to its being required to make an assumption, he said:
“In my judgment, it is unhelpful to introduce words like ‘presume’ into the first stage of establishing a prima facie case. Section 63A(2) makes no mention of any presumption. In the relevant passage in Igen Ltd v Wong … the court explained why the court does not, at the first stage, consider the absence of an adequate explanation. The tribunal is told by the section to assume the absence of an adequate explanation. The absence of an adequate explanation only becomes relevant to the burden of proof at the second stage when the respondent has to prove that he did not commit an unlawful act of discrimination.”
The assumption at that stage, in other words, is simply that there is no adequate explanation. There is no assumption as to whether or not a prima facie case has been established. The wording of sections 63A(2) and 54A(2) is quite explicit on this point. The complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden.”
Direct or Indirect Discrimination
33. Harvey on Industrial Relations and Employment Law sets out the interaction of direct and indirect discrimination at paragraph 289ff. In R (On the application of E) v Governing Body of JFS [2009] UKSC 15, [2010] IRLR 136 Lady Hale said at paragraphs 56–57:
''The basic difference between direct and indirect discrimination is plain: see Mummery LJ in R (Elias) v Secretary of State for Defence [2006] EWCA 1293, [2006] 1 WLR 3213, para 119. The rule against direct discrimination aims to achieve formal equality of treatment: there must be no less favourable treatment between otherwise similarly situated people on grounds of colour, race, nationality, or ethnic or national origins. Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins.
Direct and indirect discrimination are mutually exclusive. You cannot have both at once. As Mummery LJ explained in Elias at para 117 “the conditions of liability, the available defences to liability and the available defences to remedies differ”. The main difference between them is that direct discrimination cannot be justified. Indirect discrimination can be justified if it is a proportionate means of achieving a legitimate aim.''
DIRECT DISCRIMINATION – CASE LAW
34. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 the issue of the comparison required in discrimination cases was considered. Lord Nicholls remarked:
“10. In deciding a discrimination claim one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.
No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
…
11. This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.
…
110
In summary, the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class. But the comparators that can be of evidential value, sometimes determinative of the case, are not so circumscribed. Their evidential value will, however, be variable and will inevitably be weakened by material differences between the circumstances relating to them and the circumstances of the victim.”
35. The issue of the comparison was also considered in Hewage. In that case, the comparator relied upon by the claimant was appropriate, even though the relevant circumstances were not identical. The Supreme Court observed that:
“The question whether the situations were comparable is, however, a question of fact and degree …”
36. Shamoon is authority for the proposition that a detriment exists if a reasonable worker would or might take the view that the treatment was in all the circumstances to his detriment must be applied by considering the issue from the point of view of the victim. If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought to suffice. While an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute “detriment”, a justified and reasonable sense of grievance about the decision may well do so.
37. Elias LJ in Deer v University of Oxford [2015] EWCA Civ 52, [2015] IRLR 481 held:
''That although the concepts of less favourable treatment and detriment are distinct, there will be very few, if any, cases where less favourable treatment will be meted out and yet it will not result in a detriment. This is because being subject to an act of discrimination which causes, or is reasonably likely to cause, distress or upset will reasonably be perceived as a detriment by the person subject to the discrimination even if there are no other adverse consequences. That is perhaps more starkly the position in cases of discrimination on race or sex grounds where it can be readily seen that the act of discrimination of itself causes injury to feelings. But similar reasoning applies to victimisation discrimination.''
38. Lord Hoffman in Watt (Carter) v Ahman [2007] UKHL 51; [2008] 1AC 696 at Paragraph 36, summarised the test for discrimination as follows:-
“(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (‘the statutory comparator’) actual or hypothetical, who is not of the same sex or racial group as the case may be.
(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in each case should be (or assumed to be) the same as, or not materially different from, those of the complainant.
''The fundamental question is why the alleged discriminator acted as he did. If what he does is reasonable, then the reason is likely to be non-discriminatory. In general, a person has good non-discriminatory reasons for doing what is reasonable. This is not inevitably so since sometimes there is a choice between a range of reasonable conduct, and it is of course logically possible the discriminator might take the less favourable option for someone who is, say black or a female, and the more favourable for someone who is white or male. But the tribunal would need to have very cogent evidence before inferring that someone who has acted in a reasonable way is guilty of unlawful discrimination. By contrast, where the alleged discriminator acts unreasonably then a tribunal will want to know why he has acted in that way. If he gives a non-discriminatory explanation which the tribunal considers to be honestly given, then that is likely to be a full answer to any discrimination claim. It need not be, because it is possible that he is subconsciously influenced by unlawful discriminatory considerations. But again there should be proper evidence from which such an inference can be drawn. It cannot be enough that the victim is a member of a minority group… The significance of the fact that the treatment is unreasonable is that a tribunal will more readily in practice reject the explanation given than it would if the treatment were reasonable. In short it goes to credibility”
Uniform Policy Case Law
40. The application of uniform policies has been considered in a number of cases including Schmidt v Austicks Bookshops Ltd [1978] ICR 85, Burrett v West Birmingham Health Authority [1994] IRLR 7 EAT; (unreported), 3 March 1994; Court of Appeal (Civil Division) Transcript No. 351, CA; Smith v Safeway Stores Plc [1996] ICR 868 and Department for Work and Pensions v Thompson [2004] IRLR 348. The claimant’s representative sought to distinguish these cases which had different and specific uniform requirements for males and females, whereas the CAPES policy was drafted in gender neutral terms. These cases were also in the context of claims of direct discrimination and not indirect discrimination.
41. In Smith v Safeway Stores Plc [1996] ICR 868 the Court of Appeal, applying Schmidt, held that an employers' code governing the appearance of employees was not required to make provisions which applied identically to men and women, and the appropriate and sensible approach was to consider the effect of the code overall, not item by item; that such an approach was not confined to dress but could extend to an employee's more permanent characteristics such as hair length and hair style; that a code which applied conventional standards, as far as the criterion of appearance was concerned, in an even-handed approach between men and women was not discriminatory; and that a non-discriminatory code was one which, when looked at as a whole, showed that neither sex was treated less favourably when it was enforced.
42. Gibson LJ stated
“If discrimination is to be established, it is necessary to show not merely that the sexes are treated differently, but that the treatment accorded to one is less favourable than the treatment accorded to the other. That is the starting point of the reasoning adopted in Schmidt v. Austicks Bookshops Ltd. [1978] I.C.R. 85 and, in my judgment, it is plainly correct.… The final, and it seems to me the most important, element of the approach in the Schmidt case [1978] I.C.R. 85 is that, looking at the code as a whole, neither sex must be treated less favourably as a result of its enforcement. This element of the principle is plainly correct. So it follows that I consider the approach recommended by Phillips J. in the Schmidt case to be as sound in law as it was when he enunciated it.” (Tribunal’s emphasis.)
RELEVANT FINDINGS OF FACT – DIRECT DISCRIMINATION CLAIM
Whether the second named respondent directly discriminated against the claimant on the grounds of his sex contrary to Article 3 of the Sex Discrimination (NI) Order 1976?
Are the comparators appropriate comparators?
43. The claimant seeks to compare the treatment he, as a man with facial hair who was in breach of section 1.3 of the CAPES policy, received compared to female comparators in the same unit, the ARU, who were in breach of section 1.2 of the CAPES policy. Section 1.2 of the CAPES policy stated that “In the interests of health and safety, hair should be worn so that it is cut or secured above the collar…” The uncontroverted evidence of both Sergeants Buxton and Maguire to the tribunal was that Sergeant White and Sergeant Maguire, who were two female officers within the ARU with long hair, were not able to secure their hair above collar length under their ballistics helmets (Personal Protective Equipment (PPE)). Accordingly, their long hair was secured in a pony-tail which remained below collar length. This action of allowing hair to remain below the collar was in breach of the CAPES policy and was a known health and safety risk. The risk comprised by securing long hair in a visible and accessible ponytail were well known, following a riot situation in 2013, which resulted in a Safety Notice issuing and an email being issued to all Police Officers (see pages 738-743 of the Bundle). The visible ponytail constituted a “grab risk”, with potential for that officer to be overpowered, with consequent effects on the rest of the team deployed.
44. The tribunal accepts the evidence of both Sergeant Maguire and Sergeant Buxton that the provision of a larger ballistics helmet to accommodate the long hair would have resulted in the helmets being ill-fitting, and could have placed those officers at risk of serious injury in the event of a live fire incident. Despite the ongoing breach, the female comparators were not required to cut their hair or be transferred out of the ARU.
45. The tribunal finds that the comparators identified by the claimant are appropriate comparators for the purposes of the direct discrimination claim. The CAPES policy as a whole affected both men and women. The failure of the claimant to remove his facial hair was a breach of section 1.3 of that policy. The failure of Sergeant Maguire and Sergeant White to secure their hair above the collar when wearing ballistic helmets was also a breach of section 1.2 of that policy. Both requirements were in place in the interests of health and safety.
46. Both comparators were deployed within the same unit as the claimant, both were in breach of the requirements of the CAPES policy by maintaining long hair which was not secured above the collar and in both instances this potentially gave rise to serious adverse health and safety consequences. The claimant was also in breach of the CAPES policy. Whilst different sections of the policy had been breached, the breaches potentially gave rise to a health and safety risk to both the officer and the whole team. In these circumstances, the tribunal finds that the PSNI could reasonably have required the female officers deployed within the ARU to have cut their hair to a shorter style for health and safety reasons (to allow the hair to be secured whilst maintaining a good fit from the ballistics helmet) or face a transfer out.
47. The tribunal rejects the respondents’ submission that the comparators are not appropriate comparators, as set out at paragraph 40 of the respondent’s written submission and in Chief Inspector McCreery’s evidence for the reasons set out below.
a. Submissions a and b (no complaint was made to C/I McCreery or Supt. Foy in relation to female hairstyles/complaints were made to C/I McCreery and/or Supt. Foy regarding the claimant’s non compliance with section 1.3).
Whilst it may be true that no complaint was made to Chief Inspector McCreery or Superintendent Foy about the female officers being in breach of the policy, the fact of that breach was known to the comparators’ supervising Officers, Sergeant Buxton’s evidence was that he raised the non-compliance of Sergeant White (Constable White, as she was before promotion) with Inspector Hamilton, asking whether she would be removed from duties. Sergeant Buxton’s evidence was that Inspector Hamilton informed him that “she would not and at that time the focus was on facial hair on male officers”. Inspector Hamilton was not called as a witness by the respondents (despite having provided a witness statement that the tribunal were told to disregard.) The tribunal holds that the female officers being in breach of the CAPES policy would have been known to their supervising Officers, and would have been as obvious as a failure to remove facial hair features in male officers.
b. Submission c – that the women were in breach of a different section is comparing apples with oranges.
The tribunal find that even though the claimant and the comparators were in breach of different sections of the CAPES policy, the relevant circumstances of the claimant and the identified comparators in the case are “not materially different”. Both actions (the failure to shave and the failure to secure hair) constituted a breach of the same policy and the relevant sections breached were grounded in concern for the health and safety of Officers.
c. Submission d – the actions of the respondents can only be judged on what they knew or what was before them at the time.
The tribunal finds that in light of Sergeant Buxton’s uncontroverted evidence, the PSNI had knowledge of the breach of the policy by the comparators.
d. The respondents’ representative’s additional oral submission.
At the submissions hearing, the respondents’ representative contended that as it had been conceded by the respondents that section 1.3 applied to female officers, the appropriate comparator should be a hypothetical female officer with facial hair who had refused to shave. In the respondents’ submission such a comparator would have been treated the same as the claimant. This was not the comparison relied upon by the claimant, and the tribunal has considered the claimant’s case as brought. The legislation allows for a comparison in two circumstances: (i) when the circumstances are the same or (ii) when they are not materially different. The claimant advanced his case by comparing his treatment to actual comparators in breach of the same CAPES policy. The tribunal has considered the case that has been made by the claimant. The tribunal finds as per Shamoon that the comparators, identified by the claimant, were in the same position in all material respects as the claimant. As per Hewage, the circumstances do not have to be precisely the same to be comparable. It is a question of fact and degree. The tribunal, in light of the facts and the circumstances, finds that the circumstances of the comparators identified by the claimant were not materially different to those of the claimant. In light of that finding, the tribunal does not consider it necessary to consider the hypothetical comparator put forward by the respondents’ representative, which is introducing the type of “arid dispute” that Shamoon counsels against. If the tribunal focuses on the question of the “reason why” the claimant was treated as he was, the tribunal reaches the same conclusion, namely that “the treatment, afforded to the claimant on the proscribed ground, was less favourable than [what was] …afforded to others”. If the tribunal is in error in finding that the comparators identified by the claimant were appropriate comparators, the tribunal finds that the hypothetical comparator advanced by the respondents’ representative would not have been treated in the same way as the claimant and his male colleagues. In making this finding, the tribunal has found the actual treatment of female officers in breach of section 1.2 of the CAPES policy to be persuasive evidence of how the hypothetical female comparator advanced by the respondents’ representative would have been treated, and to be determinative of that issue.
e. Chief Inspector McCreery’s evidence.
At paragraph 56 of his statement, Chief Inspector McCreery also contended that the comparison between facial hair and hair length was invalid. The tribunal does not accept his evidence that the protection afforded by a ballistics helmet is not compromised by long hair in light of the evidence of Sergeant Maguire and Sergeant Buxton. Constable Orr did not endorse the solution suggested by Chief Inspector McCreery, namely wearing a larger (and thus ill fitting) ballistics helmet, as a permanent solution, but rather it had been suggested as something to try. The tribunal notes that Chief Inspector McCreery was unaware of the “grab risk” created by ponytails. However, this risk was the subject of a separate PSNI Safety Advice email to all Police in 2013.
Less favourable treatment
48. The tribunal finds that the claimant was treated less favourably than his comparators as per Shamoon. This is obvious and self-evident. The claimant’s evidence to the tribunal was that he regards his deployment to the ARU as the pinnacle of his career. He was required to change his appearance as a condition of staying in the ARU, and informed he would be subject to an enforced move against his will when he refused. The transfer was to a traffic unit, and the claimant’s evidence was that this was a backward step in terms of his career. However, the female comparators were not made the subject of the equivalent choice, namely comply with section 1.2 of the CAPES policy (if necessary by cutting your hair to a shorter style) or be redeployed outside the ARU. Sergeant Leathem described to his Superior, Inspector Hamilton, the enforcement action against the claimant and his colleagues as “being punished and humiliated in front of their peers.” The tribunal rejects the respondents’ submission that repositioning with minimal notice (whether temporary or otherwise) is not a detriment or less favourable treatment. The tribunal finds that even though the transfer did not amount to a formal “demotion”, applying Shamoon, an enforced transfer with minimal notice (against the claimant’s will) away from a highly trained and specialised unit to a less specialised unit, with consequent loss of reputation and prestige, disruption to childcare arrangements did amount to a detriment. The fact that the transfer was stated to be a temporary transfer or that there was scope within SP58/2007 to effect a temporary transfer, does not affect this conclusion.
49. Chief Inspector McCreery’s evidence was inconsistent around the nature of the transfer. In his witness statement, at paragraph 40, he acknowledged that 29 days’ notice is normally required for a transfer (15 days’ notice in the case of an internal transfer), and he made reference to transfers on a non-voluntary basis. However, during cross examination, his evidence was that the claimant was transferred on the basis of a separate mechanism under SP 58/2007, namely a temporary transfer. This evidence was not included in his witness statement. Further, such a power to temporarily transfer is expressly stated to be for a pre-determined period. No such period was specified in this case.
50. The tribunal finds that the claimant has discharged the burden of proof resting upon him in respect of direct discrimination in the face of the following evidence set out below, which amounts to the “more” required by Madarassy.
50.1 Unreasonable enforcement.
The tribunal views the enforcement action taken against the claimant and his colleagues as unreasonable (and requiring an explanation by the respondent as per Bahl) in light of the following evidence set out below.
(a) The lack of training in RPE to allow safe deployment
(i) Chief Inspector McCreery’s evidence was that the claimant and his colleagues had been trained in the use of the RPE, that this training had been delivered by Constable Smyth on issue of the RPE, and that the training was refreshed annually by him through the porta-counting process. Chief Inspector McCreery’s evidence was that, having received this training, the claimant and his colleagues could be safely deployed using RPE. Constable Smyth conceded during cross examination that he was not a qualified trainer. Further, his evidence was that he only became aware that the claimant and his unit had been issued with RPE in 2013. Accordingly, he did not provide training to the claimant and his colleagues upon the issue of the RPE. He further explained what he would do during the porta-counting process and accepted that this did not amount to the training recommendations set out in the British Standard BS:EN 529:2005 and HSE guidance. The tribunal prefers Constable Smyth’s evidence. Constable Bunting provided what was termed “familiarisation training” to officers who carried RPE in August/September 2018. Constable Bunting delivered training provided by the Policing College on RPE. Constable Bunting accepted during cross examination that his training did not meet the requirements of the BS:EN 529:2005 and the HSE guidance. In any event, this training was some 6-7 months after the enforcement action against the claimant and his colleagues. The evidence on behalf of the claimant is that tactical training with RPE has not been provided.
(ii) The uncontroverted evidence of the claimant was that he did not receive training on mode of entry, using the FPP3 mask until 6 September 2018.
(b) The fact that the claimant had not been issued/portacounted with an FPP3 half face mask.
The uncontroverted evidence of the claimant that, at the time of the enforcement action he had been portacounted (successfully in the presence of his moustache) only on his FM12 full face respirator, and his unit had not been issued with the FPP3 half face mask.
(c) The inability of all within ARU to safely deploy using in date equipment.
The tribunal was surprised to learn that not all officers within the claimant’s unit could have safely deployed using their full face RPE masks at the time of the enforcement action, as a number of the canisters within the unit were out of date. This matter came to light during the hearing and further statements and discovery were provided, before the hearing was reconvened. Accordingly, it was not within the claimant’s knowledge at the time of the enforcement action. However, this does not alter the fact that the inability of all officers within the ARU to safely deploy because canisters had expired ought to have been known by the respondents at that time.
50.2 The evidence of gender bias on enforcement action.
Unusually, in this case the tribunal has before it evidence that the difference in treatment was subject to gender bias. Constable Kelly’s statement said that he had “raised the daily problem of female police officers currently unable to tie up their long hair when wearing a ballistic helmet” with Inspector Hamilton. Sergeant Buxton’s evidence was that Inspector Hamilton informed him when he raised the breach by a female officer that “the focus was on facial hair on male officers”.
50.3 The failure to call Inspector Hamilton.
The respondents were aware of the content of the statements of Constable Kelly and Sergeant Buxton. If these contained any misrepresentation of what had been said to Inspector Hamilton, then Inspector Hamilton needed to give evidence and set the record straight. He was not called by the respondents.
51. The tribunal, following the application of Nelson v Newry & Mourne District Council [2009] NICA, finds that the claimant has shifted the burden of proof, which in turn passes to the PSNI. The tribunal finds that there is a difference in the status of the claimant and the comparators, a difference in the treatment of the claimant and the comparators and that the respondents were on notice of reasons to delay a strict enforcement policy against men with facial hair. The unreasonable, one sided and heavy handed approach with evidence supporting gender bias on enforcement amounts to “the more” referred to in Madarassy.
52. The respondents have not persuaded the tribunal that the treatment complained of was in no way on grounds of the claimant’s sex. In so far as health and safety grounds arising from the claimant’s non-compliance with section 1.3 were relied upon as the non-discriminatory reasons for the difference in treatment, the tribunal notes that the non-compliance by the female officers to the requirements of the CAPES policy gave rise to similar, immediate and very serious health and safety concerns. The force of the argument of the need for an immediate transfer of the claimant and his colleagues in light of their breach of section 1.3 of the CAPES policy is also significantly undermined by the fact that training in Mode of Entry was provided after the CAPES policy went live. In addition, as the RPE had not been maintained, it could not have been safely deployed by all officers in the ARU at the time of the enforcement. The fact that RPE was not current and maintained and that training had not yet been delivered ought to have been relevant factors which militated against the PSNI’s decision to insist upon immediate compliance with the CAPES policy for affected male officers, or be subject to an immediate non-voluntary transfer.
53. Over and above this the evidence of Sergeant Buxton suggesting gender bias in the enforcement of the policy was not challenged. The tribunal notes the suggestion made by Chief Inspector McCreery during cross examination that if a decision was made to enforce the CAPES policy in a discriminatory way, it was made at a local level. Even if this suggestion was right, and Inspector Hamilton had failed to report the female ponytail breaches up the line, the PSNI would still be liable for the discriminatory approach to enforcement of the local manager. In any event, the tribunal was not convinced by Chief Inspector McCreery’s suggestion in this regard, as when he was pressed, he conceded that when he became aware of the breach of the CAPES policy by female officers with ponytails, he reported it up the line. He informed the tribunal that he was advised not to “deal with the issue of hair in isolation in this unit”. This can be contrasted with the fact that he was given authority to deal with male non-compliance in the unit, arising from facial hair. The claimant’s claim of direct sex discrimination is, in these circumstances, bound to succeed.
54. Accordingly, the claimant’s claim of direct discrimination in the enforcement of the CAPES policy succeeds against the second respondent. The CAPES policy has been enforced in an inconsistent and discriminatory way as per Smith. The tribunal finds that the claimant was discriminated against on grounds of his sex, contrary to Article 3 of the Sex Discrimination (Northern Ireland) Order 1976. The tribunal accepts the uncontroverted evidence of Chief Inspector McCreery, that he personally was not aware of the female officers non-compliance at the time the decision was made to transfer the claimant and his colleagues, and that he was not personally responsible for any focus in the enforcement of the policy in respect of facial hair. Moreover, the actions taken by him were discussed and agreed by more senior management. Accordingly, there is no finding of direct discrimination against the first respondent.
INDIRECT DISCRIMINATION – CASE LAW
55. In 2005 and 2011 the relevant definition of Indirect Sex Discrimination was subject to amendment by Regulations to give full effect to Council Directive 2006/54/EC. This “new definition” is also repeated in the Equality Act 2010 in Great Britain. In Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601, [2012] ICR 704, SC, Lady Hale pointed out that the current wording in [Article 3A(2)] (b) ('particular disadvantage') was intended to change the law 'to do away with the need for statistical comparisons where no statistics might exist'. In Games v University of Kent [2015] IRLR 202, EAT it was held that if statistics exist they can be important, but lack of them is not fatal to a claim.
56. In Essop v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27, [2017] IRLR 558 Lady Hale set out six 'salient features' of indirect discrimination, drawing on case law under the pre-2010 case law:
“24. The first salient feature is that, in none of the various definitions of indirect discrimination, is there any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others. …
26. A third salient feature is that the reasons why one group may find it harder to comply with the PCP than others are many and various … These various examples show that the reason for the disadvantage need not be unlawful in itself or be under the control of the employer or provider (although sometimes it will be). They also show that both the PCP and the reason for the disadvantage are “but for” causes of the disadvantage: removing one or the other would solve the problem.
…
Essop also set out the need for the causal link between the PCP and the particular disadvantage.
32 That leads to the second argument – that 'undeserving' claimants, who have failed for reasons that have nothing to do with the disparate impact, may 'coat tail' upon the claims of the deserving ones. This is easier to answer if the disadvantage is defined in terms of actual failure than if it is defined in terms of likelihood of failure (because only some suffer the first whereas all suffer the second). But in any event, it must be open to the respondent to show that the particular claimant was not put at a disadvantage by the requirement. There was no causal link between the PCP and the disadvantage suffered by the individual: he failed because he did not prepare, or did not show up at the right time or in the right place to take the test, or did not finish the task. A second answer is that a candidate who fails for reasons such as that is not in the same position as a candidate who diligently prepares for the test, turns up in the right place at the right time, and finishes the tasks he was set. In such a situation there would be a 'material difference between the circumstances relating to each case', contrary to s.23(1) (paragraph 4 above). A third answer is that the test may in any event be justified despite its disparate impact. Although justification is aimed at the impact of the PCP on the group as a whole rather than at the impact upon the individual, as Langstaff J pointed out, the less the disadvantage suffered by the group as a whole, the easier it is likely to be to justify the PCP. If, however, the disadvantage is defined in terms of likelihood of rather than actual failure, then it could be said that all do suffer it, whether or not they fail and whatever the reason for their failure. But there still has to be a causal link between the PCP and the individual disadvantage and it is fanciful to suppose that people who do not fail or who fail because of their own conduct have suffered any harm as a result of the PCP. It must be permissible for an employer to show that an employee has not suffered harm as a result of the PCP in question.”
57. In London Underground Ltd v Edwards (No 2) [1997] IRLR 157, EAT; on appeal [1998] IRLR 364, [1999] ICR 494, EWCA, the proportions showed that 100% of male train drivers could comply with a specific requirement of shift working, compared to 95% of female drivers. But the male drivers amounted to 2023, and there were only 21 females (of whom 20 could comply with the new shift patterns). Against that background, the tribunal was held entitled to find indirect discrimination and a need for the employers to provide objective justification for the requirement imposed.
Particular Disadvantage
58. Harvey on Industrial Relations and Employment Law at Division L Paragraph 330 states: “The new definition of indirect discrimination removes the requirement for the claimant to show that s/he could not comply with the requirement or condition imposed. Now all that has to be proved is that the provision, criterion or practice puts or would put persons who share a protected characteristic at a particular disadvantage when compared with those who do not have that characteristic, and the claimant is put to that disadvantage. Provided that it is also not justifiable for a reason irrespective of the protected characteristic of the person to whom the PCP is applied, the requirements for discrimination are made out. This change makes it unnecessary to consider whether actual compliance on the part of the individual is possible and so renders superfluous such interesting questions as whether women with substantial resources which allow them to buy child-care facilities 'can comply' with work requirements that demand their full-time presence. Instead, it directs attention rather to a more generalised consideration of the effects of provision, criterion or practice.” (Tribunal’s emphasis)
59. The issue of whether a claimant who can in fact comply with a condition can be said to be placed at a 'particular disadvantage' was considered by the EAT in the religious discrimination case of Eweida v British Airways Plc [2009] IRLR 78; affirmed CA: [2010] EWCA Civ 80, [2010] IRLR 322; considered by ECtHR: [2013] IRLR 231. In the EAT Elias P held (at paras 44 and 45):
''… the concept [in reg 3(1)(b)(ii)] identifies particular disadvantage resulting from the application of a provision, criterion or practice, but it does not link it specifically to non-compliance with the provision or criterion in issue.
There is some merit in the argument that the change in wording permits a court to find a particular disadvantage even with respect to those who can and do comply with the provision. An example might be a woman who wishes for childcare reasons to work part time but feels compelled to work full time, which is a job requirement, because her employer will not consider the possibility of part-time work and she cannot afford to lose her job. It may well be that the current definition would permit a claim of that nature. Equally, when determining whether there is a group disadvantage, such a person could be considered to be part of the disadvantaged group notwithstanding a reluctant willingness to comply with the requirement, although we suspect that examples of people prepared to compromise strongly held religious beliefs in that way would be rare.''
60. In Chez Razpredelenie Bulgaria AD v. Komisia za Zashtita ot Diskriminatsia - [2015] IRLR 746 the ECJ held
“99
It follows neither from the words 'particular disadvantage' used in Article 2(2)(b) nor from the other detail contained in that provision that such a disadvantage would exist only where there is a serious, obvious and particularly significant case of inequality.”
61. If there is evidence of indirect discrimination, the burden shifts to the respondents to show that the measure is justified. (MacCulloch v ICI [2008] IRLR 846, EAT; Lockwood v DWP [2013] EWCA Civ 1195, [2013] IRLR 941, [2014] ICR 1257).
Justification
62. Seldon v Clarkson Wright and Jakes [2012] UKSC16 confirmed that the issue of justification is to be considered when the difference of treatment is applied to the person who brings the complaint: “Furthermore, the time at which the justification for the treatment which is said to be discriminatory must be examined is when the difference of treatment is applied to the person who brings the complaint.” (paragraph 78) This case also allowed that the justification may be an ex post facto rationalisation. O’Brien v Ministry of Justice [2013] UKSC 6 confirmed that an employer can advance a different and better justification at the Hearing for maintaining the measure or policy. The Supreme Court went on to observe:
“48. However, in this as in any other human rights context, this court is likely to treat with greater respect a justification for a policy which was carefully thought .... In particular, as Mummery LJ pointed out in R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213, at paras 128 to 132, it is difficult for the Ministry to justify the proportionality of the means chosen to carry out their aims if they did not conduct the exercise of examining the alternatives or gather the necessary evidence to inform the choice at that time.”
63. Seldon stated:
“61 Once an aim has been identified, it has still to be asked whether it is legitimate in the particular circumstances of the employment concerned. For example, improving the recruitment of young people, in order to achieve a balanced and diverse workforce, is in principle a legitimate aim. But if there is in fact no problem in recruiting the young and the problem is in retaining the older and more experienced workers then it may not be a legitimate aim for the business concerned. Avoiding the need for performance management may be a legitimate aim, but if in fact the business already has sophisticated performance management measures in place, it may not be legitimate to avoid them for only one section of the workforce.”
Further, the Supreme Court, in discussing the issue of whether the measure has to be justified, not only in general but also in its application to the particular individual, stated:
“66 There is therefore a distinction between justifying the application of the rule to a particular individual, which in many cases would negate the purpose of having a rule, and justifying the rule in the particular circumstances of the business.”
64. In Homer v Chief Constable of West Yorkshire Police [2012] UKSC 15 Lady Hale, giving judgement, provided guidance on the issue of justification, in the context of an age discrimination claim. However the principles are applicable in the consideration of justification in an indirect sex discrimination claim:
“19. The approach to the justification of what would otherwise be indirect discrimination is well settled. A provision, criterion or practice is justified if the employer can show that it is a proportionate means of achieving a legitimate aim. The range of aims which can justify indirect discrimination on any ground is wider than the aims which can, in the case of age discrimination, justify direct discrimination. It is not limited to the social policy or other objectives derived from article 6(1), 4(1) and 2(5) of the Directive, but can encompass a real need on the part of the employer's business: Bilka-Kaufhaus GmbH v Weber von Hartz, Case 170/84, [1987] ICR 110.
20. As Mummery LJ explained in R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293, [2006] 1 WLR 3213, at [151]:
". . . the objective of the measure in question must correspond to a real need and the means used must be appropriate with a view to achieving the objective and be necessary to that end. So it is necessary to weigh the need against the seriousness of the detriment to the disadvantaged group."
He went on, at [165], to commend the three-stage test for determining proportionality derived from de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80:
"First, is the objective sufficiently important to justify limiting a fundamental right? Secondly, is the measure rationally connected to the objective? Thirdly, are the means chosen no more than is necessary to accomplish the objective?"
As the Court of Appeal held in Hardy & Hansons plc v Lax [2005] EWCA Civ 846, [2005] ICR 1565 [31, 32], it is not enough that a reasonable employer might think the criterion justified. The tribunal itself has to weigh the real needs of the undertaking, against the discriminatory effects of the requirement.
…
22. Although the regulation refers only to a 'proportionate means of achieving a legitimate aim', this has to be read in the light of the Directive which it implements. To be proportionate, a measure has to be both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so.”
65. In Hardy & Hansons plc v Lax Pill LJ stated:
“32
Section 1(2)(b)(ii) requires the employer to show that the proposal is justifiable irrespective of the sex of the person to whom it is applied. It must be objectively justifiable (Barry) and I accept that the word 'necessary' used in Bilka is to be qualified by the word 'reasonably'. That qualification does not, however, permit the margin of discretion or range of reasonable responses for which the appellants contend. The presence of the word 'reasonably' reflects the presence and applicability of the principle of proportionality. The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal, in this case for a full-time appointment, is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary. I reject the appellants' submission (apparently accepted by the EAT) that, when reaching its conclusion, the employment tribunal needs to consider only whether or not it is satisfied that the employer's views are within the range of views reasonable in the particular circumstances.” (Tribunal’s emphasis)
30. In Sargeant v London Fire and Emergency Planning Authority [2018] IRLR 302 the EAT stated “the Supreme Court in Seldon [2012] IRLR 590 sought to reconcile the two lines of authority by enabling an Employment Tribunal in an appropriate case, to consider for itself whether the aim is legitimate in the particular circumstances of the employment, and to scrutinise the means used to achieve the aim in the context of the particular business to see whether they meet the objective, and whether there are other less discriminatory measures which would do so.''
66. MacCulloch v ICI [2008] IRLR 846, EAT, and approved by the Court of Appeal in England and Wales in Lockwood v DWP [2013] EWCA Civ 1195, [2013] IRLR 941, [2014] ICR 1257, established:
''(3) The principle of proportionality requires an objective balance to be struck between the discriminatory effect of the measure and the needs of the undertaking. The more serious the disparate adverse impact, the more cogent must be the justification for it: Hardys & Hansons plc v Lax [2005] IRLR 726 per Pill LJ at paragraphs [19] –[34], Thomas LJ at [54]–[55] and Gage LJ at [60].
(4) It is for the employment tribunal to weigh the reasonable needs of the undertaking against the discriminatory effect of the employer's measure and to make its own assessment of whether the former outweigh the latter. There is no “range of reasonable response” test in this context: Hardys & Hansons plc v Lax [2005] IRLR 726, CA.”
67. In Chief Constable of West Yorkshire Police and West Yorkshire Police Authority v Homer [2009] IRLR 262, [2009] ICR 223 (considered on other grounds by the Supreme Court [ 2012] UKSC 15, [2012] IRLR 601), the EAT stated (at [48]):
''… it is an error to think that concrete evidence is always necessary to establish justification, and the ACAS guidance should not be read in that way. Justification may be established in an appropriate case by reasoned and rational judgment. What is impermissible is a justification based simply on subjective impression or stereotyped assumptions'.'
31. However the Supreme Court made it clear in the Homer case that in determining whether the measure used was proportionate, the answer to some extent depended on whether “there were non-discriminatory alternatives available.”
68. In City of Oxford Bus Services Ltd v Harvey UKEAT/0171/18/JOJ, HHJ Eady QC provided a further summary of the law of justification:
“22. Provided a Claimant has established disadvantage, the burden of establishing the defence of justification, on the balance of probabilities, lies squarely on the employer; the assessment of which is for the ET and is objective in nature, see Singh v British Rail Engineering Ltd [1986] ICR 22 EAT. As for how the ET is to approach its task in carrying out the requisite assessment, this has been considered in a number of cases, in particular: Allonby v Accrington & Rossendale College [2001] IRLR 364 CA; Hardys & Hansons plc v Lax [2005] IRLR 726 CA; Homer v Chief Constable of West Yorkshire Police [2012] IRLR 601 SC; and Seldon v Clarkson Wright & Jakes (A Partnership) [2012] IRLR 590 SC. From these authorities, the following principles can be drawn:
(1) Once a finding of a PCP having a disparate and adverse impact on those sharing the relevant protected characteristic has been made, what is required is (at a minimum) a critical evaluation of whether the employer’s reasons demonstrated a real need to take the action in question (Allonby).
(2) If there was such a need, there must be consideration of the seriousness of a disparate impact of the PCP on those sharing the relevant protected characteristic, including the complainant and an evaluation of whether the former was sufficient to outweigh the latter (Allonby, Homer).
(3) In thus performing the required balancing exercise, the ET must assess not only the needs of the employer but also the discriminatory effect on those who share the relevant protected characteristic. Specifically, proportionality requires a balancing exercise with the importance of the legitimate aim being weighed against the discriminatory effect of the treatment. To be proportionate, a measure must be both an appropriate means of achieving the legitimate aim and reasonably necessary in order to do so (Homer).
(4) The caveat imported by the word “reasonably” allows that an employer is not required to prove there was no other way of achieving its objectives (Hardys). On the other hand, the test is something more than the range of reasonable responses (again see Hardys).
23. When carrying out the requisite assessment there is, however, a distinction between justifying the application of the rule to a particular individual and justifying the rule in the particular circumstances of the business. In Seldon, the Supreme Court observed as follows:
“There is therefore a distinction between justifying the application of the rule to a particular individual, which in many cases would negate the purposes of having a rule, and justifying the rule in the particular circumstances of the business” (paragraph 66).” (Tribunal’s emphasis.)
69. In Pulham & Others v London Borough of Berking and Dagenham (2010) IRLR184, the EAT held that “While a tribunal is certainly entitled to have regard, in assessing the justifiability of a discriminatory measure, to the fact that it has been negotiated with the representatives of the workforce, it cannot abdicate the responsibility of itself carrying out the necessary proportionality exercise.”
RELEVANT FINDINGS OF FACT – INDIRECT DISCRIMINATION CLAIM
Whether the second named respondent’s policy on facial hair (CAPES Policy section 1.3) and application of same, indirectly discriminated against the claimant on the grounds of sex, contrary to Article 3A of the Sex Discrimination (NI) Order 1976?
70. The tribunal, in light of the concessions by the respondents that “Section 1.3 of the policy headed “Facial Hair” applies to police officers or police support staff who occupy roles where there is a routine possibility of respiratory exposure to occupational hazards”, that “there is a disparate impact on men in the ARU on the application of section 1.3 of the CAPES policy”, and the clarification provided during the submissions hearing when the respondents agreed that section 1.3 of the CAPES policy applied to all Officers (whether male or female), is constrained to find, in the context of an indirect discrimination claim, that section 1.3 of the CAPES policy is a PCP which applied to both males and females and which placed males within the ARU at a particular disadvantage over females within the ARU. It is therefore unnecessary for the tribunal to consider the alternative submission set out at paragraphs 70 -73 of the claimant’s submission, namely, that section 1.3 of the CAPES policy was directly discriminatory.
71. In any event, even apart from the concession regarding “disparate impact”, the tribunal notes the information contained in the Replies, namely, that the ARU was comprised of 69 male officers and 3 female officers. Of the 69 male officers, 6 shaved voluntarily upon request and 4 officers did not. No female officers within the ARU were required to change their appearance as a result of the introduction of the CAPES Policy, whereas 14.5% of the males within ARU were subject to this disadvantage. The first Respondent, Chief Inspector McCreery did provide total numbers of Officers in other units, namely HMSU, SOBSU, and TSG to whom section 1.3 applied (amounting to approximately 429 Officers). However, no information was provided as to the male/female breakdown of these Officers. The Replies set out at paragraph 25 above were given in response to the request and correspondence dated 18 September 2018, when the respondents were specifically asked to confirm that they accepted that there was a “disparate impact on men in the ARU, SOB, TSG, DST, CSI, DVI, PSNISAR and HES.” The respondents chose to restrict the relevant pool for their reply to the ARU. Even if the pool is set to include the Officers in the other units referred to by Chief Inspector McCreery, then on the authority of London Underground Ltd v Edwards (No 2) the tribunal still finds that particular disadvantage has been demonstrated within the pool.
72. The tribunal note the respondents’ submission at paragraph 58 of the written submission to the effect that the PCP is untainted by sex, but arises because of the claimant’s deployment within the ARU. However, the tribunal do not need to find that the PCP is tainted by sex, it needs only to identify that it causes a particular disadvantage to males, something which has been the subject of a concession by the respondents in relation to the pool of the ARU. Further, the claimant was placed at the particular disadvantage. However, the tribunal is satisfied that the respondent has proved that the provision, criterion or practice in question was not applied with the intention of treating the complainant unfavourably on the ground of his sex. This finding is irrelevant to liability, but is relevant to the question of remedy.
73. The particular disadvantage identified by the claimant’s representative was a significant proportion of male Officers within the ARU (including the claimant) being required to change their appearance by shaving off facial hair in order to remain within the unit. Refusal to do so gave rise to the risk of enforced transfer. In the Replies dated 25 July 2018 the particular disadvantage was described as the removal “of their personal choice to have facial hair.”
74. The tribunal rejects the respondents’ submission that the removal of facial hair does not amount to a particular disadvantage, because, according to that submission, the claimant “could comply” with the requirement by being clean-shaven. This submission is grounded in the pre 2005/2011 formulation of the test for indirect discrimination (“Article 3(b)(iii) - which is to her detriment because she cannot comply with it”). The tribunal accepts that the disadvantage identified by the claimant’s representative, namely being required to change their appearance by being clean shaven, does amount to a particular disadvantage as per Chez Razpredelenie Bulgaria AD. The claimant asserted that the wearing of some facial hair was an important aspect of his self-expression and that it served to improve his self-image and confidence. The tribunal is satisfied that the requirement to change his appearance against his will and upon threat of a forced transfer could and did amount to a particular disadvantage to the claimant. The tribunal finds that there is a causal link between the PCP and this particular disadvantage as per Essop.
Is the policy a proportionate means of pursuing a legitimate aim?
75. The issue for the tribunal is whether section 1.3 of the CAPES policy is justified, that is whether the policy is a proportionate means of achieving a legitimate aim. The case advanced on behalf of the claimant maintained that the CAPES policy, when introduced, did not apply to him. The claimant’s submission is technically correct, as upon consideration of the wording of the first iteration of the Policy which stated section 1.3 applied “where there is routine respiratory exposure to occupational hazards”, the tribunal accepts the evidence on behalf of the claimant that he did not, at that time, have routine respiratory exposure to occupational hazards. However, the tribunal finds that this was merely a misstatement of the Policy applicability which was quickly remedied. The claimant’s own statement shows that he was in no doubt of the proposed applicability of the Policy to him, given that he shaved off his beard in anticipation of the promulgation of the Policy. His statement confirmed that he had shaved off in his beard, leaving a moustache, in the belief that this would render him compliant with the requirements of the new policy.
76. The claimant properly conceded at Paragraphs 27 and 28 of his submission that the aim of section 1.3 of the CAPES Policy, namely the health and safety of Officers who may have exposure to respiratory hazards, was a legitimate aim. It appears that what was not conceded by the claimant is that section 1.3 of the CAPES policy was properly applied to the ARU at that particular time, in the absence of what was termed “proper training”, in the absence of “tactical training” for the ARU, before half faced masks had been issued to the ARU and in circumstances where the management of the ARU equipment was not sufficient to ensure that all Officers within the unit were carrying canisters which remained in date. In this regard, “application” of the Policy is treated as a separate issue from its “enforcement”, (the enforcement grounds the claim of direct discrimination). The claimant’s submission is that at the time of the introduction of section 1.3 of the CAPES policy it was unnecessary to apply it to the ARU, and accordingly, that it could not be proportionate to have done so. The tribunal can see the logic of the claimant’s position in this regard, which may be sufficient to maintain the distinction described in Seldon between justifying the application of the rule to an individual and justifying the rule in the particular circumstances of [the PSNI] at that time.
77. In considering the issue of justification, the tribunal is required to consider whether the means chosen are no more than is necessary to accomplish the objective, as per R (Elias) and de Freitas.
78. The tribunal has no issue in accepting that some restriction of facial hair in the case of Officers who may have had to deploy using RPE is justified. The claimant also accepts the necessity of some restriction on facial hair. However, the tribunal finds that a complete ban on facial hair has not been justified by PSNI, as it has failed to persuade the tribunal that it corresponded with a real need of PSNI at that time as per Hardy and Hansons PLC and Harvey, and that the measure was proportionate, that is, no more than was necessary to achieve the aim, as per R (Elias) and de Freitas. The tribunal make this finding in light of the following evidence before it:
78.1 The ARU were not ready to deploy operationally using RPE at the time of the introduction of the CAPES Policy – Not all officers within the ARU had canisters for their FM12 respirators which were not expired, the claimant and his colleagues had not received training (beyond portacounting) in the maintenance and use of RPE or tactical training using RPE, the claimant and his colleagues had not been issued with or portacounted for FPP3 masks and they had not received mode of entry training. Superintendent Foy accepted that UPMC was not aware of the out of date canister issue at the time the CAPES policy was under discussion. To that extent, the PSNI justification was a prospective justification, rather than a real business need which existed at that time.
78.2 Manufacturer, EN 529:2005 and HSE Guidance - Neither the Health and Safety Executive guidance, EN 529:2005 nor the RPE manufacturers’ guidance require the wearers of RPE, whether full face or half face respirators, to be completely clean shaven. Rather, the only requirement is to be clean shaven in the area of the face seal. BSEN 529:2005 states: “tight-fitting face pieces (filtering face pieces, quarter masks, half masks and full face masks) rely heavily on a good seal between the mask and the wearer’s face.” At section 9.3.3 it is assumed that some facial hair may be retained in assessing the suitability of RPE for the task. At appendix D, section D.4.2 it states “facial characteristics such as scarring or unshaven facial hair can significantly affect the protection offered by some devices. This will particularly be true for devices such as half and full face masks which rely on a tight face seal to achieve protection. These devices should not be selected where there is unshaven hair or on an irregular facial feature in the area of the face seal.” (Tribunal’s emphasis). The PSNI Safety Notice SAN 01/2016 also referred to the content of EN529:2005 before concluding that wearers of RPE must be clean shaven. This appears to the tribunal to overstate the required restriction on facial hair. HSE guidance which was included in the bundle of documents before the tribunal also recognises that some facial hair may be retained as long as it is not in the area of the face seal. HSE operational circular 0C282/28 states: “a tight-fitting face piece, a full face mask, half mask, or a filtering face piece (commonly referred to as disposable mask). The performance of these types of face pieces, irrespective of whether they are used in negative pressure respirators, power assisted respirators or compressed air supplied breathing apparatus, relies heavily on the quality of fit of the face piece to the wearer’s face. An inadequate fit will significantly reduce the protection provided to the wearer. The presence of facial hair in the region of the face seal will significantly reduce the protection provided.” (Tribunal’s emphasis). At section 110, dealing with fit testing (otherwise porta-counting), the guidance states: “A fit test should not be conducted if you have any facial hair growth in the area where the face piece seal meets your face. This is because a reliable face seal can only be achieved if you’re clean-shaven in the area where the face piece seal touches your face.” (Tribunal’s emphasis.) HSE guidance entitled “Respiratory protective equipment at work” at section 82 states that: “The wearer needs to be clean-shaven around the face seal to achieve an effective fit when using tight-fitting face pieces. Training is a good opportunity to make employees aware of this.” (Tribunal’s emphasis.)
78.3 Insufficient evidence to support the necessity of a complete ban on facial hair - The case advanced by the respondents was that a complete ban on facial hair was necessary to guard against the possibility of an Officer presenting himself for duty in the mistaken belief that his retained facial hair would allow a good seal to be maintained. Constable Smyth’s evidence was that a handful of individuals had in the past attended for porta-counting with the mistaken belief that a good seal could be achieved with their facial hair. However, in cross examination, Constable Smyth conceded that maintaining facial hair so as not to affect the effectiveness of the seal was a matter which could have been addressed through training. This is a view shared by the HSE, as set out at paragraph 78.2 above. Constable Orr, during oral evidence, stated that he had discussed with Sergeant Murray and Constable Smyth the viability of providing a template, but had discounted this option as unworkable. This evidence was not in his witness statement, nor was it corroborated by the statements or oral evidence of Sergeant Murray or Constable Smyth. The tribunal did not have any evidence before it to show that UPMC had given any consideration to implementing a restriction on facial hair, which was less extensive than a complete ban. Further, Superintendent Foy’s evidence confirmed that alternatives with a lesser impact were not considered by UPMC. Applying R(Elias), as approved by the Supreme Court in O’Brien, the PSNI has sought to justify the policy and show proportionality in circumstances when UPMC does not appear to have gathered the evidence needed to inform its choice.
78.4 Provision of Training – As noted above, the tribunal finds that a less restrictive measure was available to the respondents, namely the retention of facial hair that facilitated an effective seal, supported by training. One of the issues for determination by the tribunal was: Has the second named respondent trained the claimant on RPE? If so, why has the second named respondent not trained the claimant on RPE? Is this training necessary? Chief Inspector McCreery gave evidence that Constable Smyth had given training to the claimant and his colleagues. Constable Smyth’s evidence was that he had merely fitted the RPE and gave some very basic instruction on donning and doffing RPE. In cross examination, he conceded that this instruction did not amount to the training recommended by the HSE (page 702 of the bundle). Further, the “refresher training” that was provided in July/August 2018, (some 6 months after the CAPES Policy was introduced) did not include operational/tactical training with RPE deployed. BSEN 529: 2005 sets out recommendations in relation to training. This is set out at section 11 – Operating information, instruction and training. 11.1 states: “The training of all those involved in the programme should be kept up to date through a process of regular refresher training. The refresher training should take place at least annually. The training should be matched to the complexity of the device and the extent of the health/life risks against which the devices used.” (Tribunal’s emphasis.) HSE guidance entitled “Respiratory protective equipment at work” states that: “RPE at work should be used by properly trained people who are supervised.” At section 32 it states “For RPE to be effective, you should integrate its use into normal workplace activities.” Sergeant Leathem gave evidence of his view that the ARU was still (as at the time of the hearing) not in a position to be safely deployed as no tactical/operational training had been given, and he believed this was a necessary pre- requisite to safe deployment. The respondents will wish to carefully consider the adequacy of the training provided to the claimant and other Officers in light of the potential use of lethal force by Officers in the claimant’s unit, in circumstances where RPE has been deployed. Any such training could address the need to maintain the sealing area free from facial hair.
78.5 A Pre-Deployment Fit Check – The tribunal rejects the justification of a complete ban on facial hair put forward by the second respondent, namely that in the absence of a complete ban on facial hair there could be no assurance that Officers’ RPE would give adequate protection and that portacounting would be required on every occasion before deployment. There was no evidential basis before the tribunal for the respondents’ submission at paragraph 9 of their submissions that “compliance with legislation would require [PSNI] to porta count (test) each officer who has facial hair immediately prior to each occasion on which they wear RPE.” The respondents, in their submissions, invited the tribunal to discount any suggestion of personal responsibility in maintaining facial hair in a manner which would not impact upon health and safety, submitting that any such suggestion lacked credibility and failed to recognise the fast pace operational environment within which these officers worked. The tribunal rejects this submission of the respondents. The tribunal accepts the evidence given by the claimant and confirmed by Constable Smyth that users could carry out a “fit check” as described in paragraph 80 of HSE guidance on using RPE, at page 701 of the bundle. The claimant demonstrated such a fit check on his full face respirator during his oral evidence at the hearing. Such a fit check would have allowed individual Officers to be satisfied and assured as to the effectiveness of the seal of their RPE, without any need to carry out a porta-counting exercise in advance of deployment. PSNI accepted that these Officers, described in the respondents’ submissions as “usually the best trained and best equipped resource immediately available to support District Policing”, could be trusted to make life and death decisions, in the context of responding with what could be lethal force, utilising specialist training and equipment. The suggestion that such highly trained and specialised Officers could not be trained and then trusted to maintain appropriate facial hair is not accepted by the tribunal.
78.6 Consideration of Options by UPMC - Superintendent Foy was the chair of the Uniform and Protective Measures Committee (UPMC). Her statement set out this background and history to the CAPES policy. This included considering an options paper on facial hair put forward for consideration by the UPMC in July 2017. In the conclusion/recommendations section of this paper it stated that a tight fitting seal “cannot be achieved in the presence of facial hair”. (Page 270 of the Bundle). The tribunal holds this statement to be inaccurate in light of the evidence of the respondent’s own witnesses (Constables Orr and Smyth both accepted that a seal could be maintained as long as the wearer of RPE was clean shaven in the area of the seal), and the HSE guidance and manufacturer’s guidance referred to above. The minutes of this meeting record that “for RPE to be effective there must be a tight fitting seal and this cannot be achieved with the presence of facial hair.” (Tribunal’s emphasis). This statement also recurs in the minutes of UPMC dated 25 October 2017. During cross examination Superintendent Foy stated she was unaware that there had been any alternative to a clean shaven policy. Whilst Constable Orr, who was from Health and Safety Branch, gave evidence during cross examination that UPMC had been made aware of the possibility of retaining facial hair, he agreed that this discussion was not recorded in the minutes of the meeting. The tribunal prefers Superintendent Foy’s evidence in this regard, given the clear content of the briefing paper and the content of the minutes. Accordingly, it is clear that no proper consideration was given to allowing Officers to retain some facial hair, as long as same did not interfere with the RPE. The tribunal therefore cannot be satisfied that proper consideration was given to less discriminatory measures which could have achieved the aim. In this context, a less discriminatory measure would have been to allow some facial hair, so long as it did not interfere with the seal. As per R (Elias), as approved in O’Brien, the second respondent is in considerable difficulty justifying the proportionality of the CAPES policy, where the UPMC has not properly examined the less discriminatory alternatives.
78.7 Trade Union consultation - the respondents in their submission placed reliance upon the fact that the CAPES Policy had been considered by the Police Federation on behalf of its members, and no objection had been raised to the Policy. It is true that as per the respondents’ submission, this is a relevant factor in determining whether the measure is justified, but it is by no means determinative of the issue. In the case before the tribunal, the outcome of the consultation with the Police Federation has been tainted with the same factually inaccurate information which was provided to them in the Options Paper referred to at paragraph 78.6 above, as well as what appears to have been the lack of proper consideration of less restrictive measures at subsequent UPMC meetings which the Federation representatives attended.
78.8 The timing and adequacy of the EQIA assessment - The tribunal also noted that the EQIA assessment carried out on section 1.3, supporting the introduction of the CAPES Policy, (included at pages 114-116 of the Bundle), was not completed until 25 June 2018, some 5 months after the promulgation of the Policy (and after the claimant lodged his claim). This is not good practice. The EQIA included the statement that “There is verifiable research and evidence from the Health and Safety Executive which proves that facial hair breaks the seal.” This did not equate to a recommendation that no facial hair could be maintained. The EQIA screening document identified that section 1.3 had a high impact on Gender. It further stated that it impacted on “Male only” because of “Physiology”. The assessment continued “With regard to Gender, this will affect men due to the natural process of ‘growing beards’, there is no way to reduce or mitigate this disproportionate impact this policy will have on this gender group.” This EQIA does not appear to have given any consideration to whether a less extensive provision, which would have allowed for the retention of facial hair not in the area of the seal of RPE equipment, would have been a proportionate alternative.
79. PSNI has failed to persuade the tribunal that the complete ban on facial hair for some Officers comprised within section 1.3 of the CAPES policy was a proportionate means of achieving a legitimate aim which corresponded to a real business need which existed at that time (rather than a prospective aim) and that it was no more than was necessary, as per de Freitas and R(Elias) in achieving the legitimate aim identified. The tribunal is not satisfied that proper consideration was given to measures (including training) which would have allowed some facial hair which did not interfere with a seal to be maintained. The tribunal finds in light of the evidence before it that a complete ban on facial hair was disproportionate, when the respondents had not considered addressing these issues through training and monitoring.
80. The tribunal acknowledges that the relevant section of the policy was introduced with good intentions. If the PSNI had demonstrated that it had properly considered whether a less restrictive policy was sufficient to meet the legitimate aim, and trialled a partial restriction on facial hair, it may have been in a position to persuade the tribunal that the complete ban was necessary. This decision does not preclude a review of the policy in the future retaining a complete ban on facial hair for officers in certain deployments or in certain situations, where this can be demonstrated to be justified. However, in the absence of such evidence, and taking account of the other evidence before it from the relevant British Standards and HSE guidance, which supports the finding that the measure went beyond what was necessary to achieve its aim, the justification defence is not made out.
81. Accordingly, the claimant’s claim of indirect sex discrimination arising from the introduction and application of section 1.3 of the CAPES policy succeeds against the second respondent. For the avoidance of doubt, the claim of indirect discrimination against the first respondent is dismissed. Whilst he was involved in meetings of the UPMC he was not responsible for the policy or deciding the applicability of the policy.
VICTIMISATION – CASE LAW
82. In McCann v Extern [2014] NICA 1 the Northern Ireland Court of Appeal summarised the law relating to victimisation.
[14] … The IDS Handbook states at paragraphs 9.41 and 9.42:-
“9.41 To succeed in a claim of victimisation, the claimant must show that he or she was subject to the detriment because he or she did a protected act or because the employer believed he or she had done or might do a protective act …
9.42 …. The essential question in determining the reason for the claimant’s treatment is always the same: what consciously or sub-consciously motivated the employer to subject the claimant to the detriment? In the majority of cases, this will require an inquiry into the mental processes of the employer …”
[15] As Harvey said at paragraph [468] in respect of the test for victimisation:
“Analysing the elements of any potential victimisation claim requires somewhat different considerations as compared to the other discrimination legislation.
…
A claim of victimisation requires consideration of:-
The protected act being relied upon
The correct comparator
Less favourable treatment
The reason for the treatment
Any defence.
Burden of proof.”
83. A claim of victimisation also requires a comparison with an appropriate comparator. In Chief Constable of West Yorkshire Police v Khan, [2001] UKHL 48, [2001] IRLR 830, [2001] ICR 1065 Lord Nicholls stated (at para [27]): 'The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act.' The case of Khan also considered the wording of “by reason that”:
“29
(3) 'by reason that'
Contrary to views sometimes stated, the third ingredient ('by reason that') does not raise a question of causation as that expression is usually understood. Causation is a slippery word, but normally it is used to describe a legal exercise. From the many events leading up to the crucial happening, the court selects one or more of them which the law regards as causative of the happening. Sometimes the court may look for the 'operative' cause, or the 'effective' cause. Sometimes it may apply a 'but for' approach. For the reasons I sought to explain in Nagarajan v London Regional Transport [1999] IRLR 572, 575–576, a causation exercise of this type is not required either by s.1(1)(a) or s.2. The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.”
84. In Pothecary Witham Weld and another (appellants) v Bullimore and another (respondents) and the Equality and Human Rights Commission (intervener) [2010] IRLR 572 the EAT confirmed that the reverse burden of proof does apply to victimisation claims under the equivalent of the Sex Discrimination (Northern Ireland) Order 1976.
VICTIMISATION – RELEVANT FINDINGS OF FACT
85. During the submissions hearing, the claimant’s representative accepted that the chronology of the transfer did not support the claim that the claimant was victimised by being threatened with transfer/actually transferred as a result of having raised his complaints as set out in his grievance document dated 2 February 2018. Accordingly, the claimant was only pursuing his claim of victimisation in so far as it related to being prevailed upon to withdraw his grievance, and the consequent delays in communicating to him that he would be permitted to return to his unit.
86. The claimant did not identify a comparator during the course of the hearing. The respondents’ representative highlighted the similarity of the treatment received by Constable Kelly, who had not done a “protected act” (namely issuing a grievance making allegations of unlawful discrimination). He was asked by Inspector Hamilton on 9 February 2018 if he would shave, if he would confirm he would not submit a medical appeal, if he would confirm that he would not challenge the decisions of Chief Inspector McCreery and if he would confirm that he would not instigate a complaint or grievance under the bullying and harassment policy, before being readmitted to the ARU.
87. The tribunal did not hear argument on the point, but the tribunal notes from his witness statement that Constable Kelly had expressed his belief that his treatment was “wrong and unlawful” when the matter was discussed on or about 1 February 2018. This could arguably have given rise to a belief by management of an intention on the part of Constable Kelly to make an allegation which would amount to a protected act.
88. The alternative for the tribunal was to consider whether the claimant had been treated less favourably than a hypothetical comparator, who had raised a grievance complaint which did not amount to a protected act and for whom there was no belief in an intention to make an allegation.
89. There was no evidence before the tribunal to suggest that such a hypothetical comparator would have been treated any differently than the claimant. Further, even if the tribunal is in error in this respect, the tribunal does not find the treatment complained of was done on grounds of the protected act. The tribunal accepts the reason given by the respondents for the enquiry, namely that it was a simple enquiry made to keep senior management apprised of developments.
90. The first respondent wrote to the claimant’s Inspector (as the claimant was on sick leave and had no access to a computer terminal to access his email) by email dated 9 February 2018 at 13:23. It stated: “So that ACC Gray and Superintendent Foy are fully informed please ascertain the following: *Does Constable Downey intend to pursue his appeal on religious grounds?” *Does Constable Downey intend to pursue his formal complaint of Bullying and Harassment/Grievance?” The email was copied to a number of others including the Superintendent, P Foy. In his evidence Chief Inspector McCreery stated that this email was sent following consultation with Superintendent Foy, and at her direction. Superintendent Foy in her evidence confirmed this and stated that this information was required by Assistant Chief Constable Gray. Superintendent Foy maintained that she was the sole decision maker as to whether the claimant would be permitted to return to his unit, and that whether or not he continued with his grievance was not a factor in this decision.
91. The tribunal is also confirmed in its view that a hypothetical comparator would have received the same treatment upon consideration of the enquiries made of both the claimant and Constable Kelly and the fact that the scope of the enquiries made was wider than just asking about the pursuit of the claimant’s grievance. The queries included religious and medical appeals.
92. The claimant’s victimisation claim against both respondents therefore fails on the grounds of the claimant not having discharged the burden of proof, in that the claimant has not shown facts from which the tribunal could conclude the respondents, or either of them have victimised him. He has failed to show that the appropriate comparator would have been treated differently. Further, the tribunal is in any event satisfied on the balance of probabilities that the reason for the treatment was not by reason of the protected act, but accept the evidence of the respondents that the enquiry was made to keep management informed.
SUMMARY
93. The claimant’s claims of direct discrimination in respect of the enforcement of the CAPES policy is well founded against the second respondent. No particular allegation of direct discrimination against the first respondent was identified in the agreed statement of issues, pursued at the hearing or in the submissions. The claimant’s claim of direct discrimination against the first respondent in respect of the enforcement of the CAPES policy is dismissed. The claimant’s claim of indirect discrimination against the second respondent is well founded. The claimant’s claim of indirect discrimination against the first respondent is not well founded and is dismissed. The claimant’s claim of victimisation against both respondents is not well founded and is dismissed.
REMEDIES
94. The tribunal has found at paragraph 72 above that section 1.3. of the CAPES policy was not applied with the intention of treating the complainant unfavourably on the ground of his sex. By way of remedy, the tribunal makes a declaration that the claimant has been subject to unlawful indirect discrimination in the application of section 1.3 of the CAPES policy, contrary to Article 3A of the 1976 Order. The tribunal, in pursuance of its powers at Article 65(1) (c) of the Sex Discrimination (Northern Ireland) Order 1976, also makes a recommendation that the PSNI review the operation and wording of section 1.3 of the CAPES policy, in order to lessen its discriminatory impact.
95. An award of compensation may only be made in the case of unintentional indirect sex discrimination where a declaration (Article 65(1)(a)) and/or a recommendation (Article 65(1)(c)) are considered as if there were no power to award compensation, and then where either a declaration or a recommendation is made, if it is just and equitable to also award compensation. The tribunal finds that, in the case of the indirect discrimination claim, the making of the above declaration and recommendation is a sufficient remedy for the claimant, and that, in light of the finding that there was no intention to discriminate against the claimant, the tribunal holds it is not just and equitable to make a separate award of compensation for the indirect discrimination claim.
96. The tribunal also makes a declaration that the claimant has been directly discriminated against in the enforcement of the CAPES policy. The tribunal finds that in respect of this head of claim it is just and equitable to also make an award of compensation.
97. In Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102, the Court of Appeal stated:
“It is self-evident the assessment of compensation for an injury or loss, which is neither physical nor financial, presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedence. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anxiety, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise.”
“Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The Court and Tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available on the calculation of financial loss or compensation for bodily injury”.
98. Vento also established that regard was to be had to equivalent awards under the JSB guidance, as well as establishing the bandings to be used for assessment of injury to feelings. The top band for a claim brought at the relevant time was normally within £25,200 and £42,000 and is restricted to the most serious cases, for example where there has been a lengthy period of discriminatory harassment. The middle band at the relevant time was generally £8,400 to £25,200 and is appropriate for less serious cases and the lowest band, at the relevant time was between £800 and £8,400, and is for even less serious cases including where an act of discrimination is an isolated or one off occurrence.
99. The fifth edition of the JSB Guidelines for the Assessment of General Damages sets damages for minor psychiatric damage as up to £15,000.
Compensation
100. The tribunal awards £392.00 net for loss of overtime, which it finds the claimant would have completed had it not been for the discriminatory treatment. This figure was not challenged by the PSNI. The tribunal accepts that the claimant would not have been absent on sick leave but for the actions of the respondents in seeking to redeploy him on short notice against his will.
101. The tribunal finds that the act of direct discrimination falls towards the bottom of the middle Vento banding. The tribunal notes the evidence of the claimant as to the effect on his health, and the corroboration of this from his medical and counselling notes and records. The tribunal accepts the uncontroverted evidence of the claimant that his sleep was affected and that the stress caused to him exacerbated symptoms from another health condition he was subsequently diagnosed with. The tribunal also notes that the claimant did not in fact substantively deploy to traffic duties. He was allowed to return to his duties within the ARU upon his return from sick leave, albeit having, on his evidence, felt humiliated by first having to shave. The tribunal awards the claimant £8,500.00 for hurt feelings. The tribunal awards interest in accordance with the Industrial Tribunals (Interest on Award in Sex Discrimination and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. There is no indication that serious injustice would be caused by calculating interest over this period.
102. Interest at 8% is therefore awarded on the award for hurt feelings from
2 February 2018 to date:
Interest at 8% per annum £680.00 per year
2 February 2019 to date – 680/365 daily rate £1.86 x 609 days = £1,132.74
103. Interest at 8% is awarded on the loss of overtime from the mid point:
Interest at 8% per annum £31.36 per year
2 February 2018 to date – 31.36 daily rate £0.09 x 609 days
/2 to reflect interest from mid point
= £27.41
_________
104. TOTAL AWARDED:
Compensation for hurt feelings £8,500.00
Loss of overtime £ 392.00
Interest on hurt feelings £1,132.74
Interest on overtime £27.41
__________
£10,052.15
105. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Employment Judge:
Date and place of hearing: 12-14 November 2018, 25-27 February 2019 and
7 June 2019, Belfast.
Date decision recorded in register and issued to parties:
Legal Issues
1. Direct Discrimination
Whether the second named respondent directly discriminated against the claimant on the grounds of his sex contrary to Article 3 of the Sex Discrimination (NI) Order 1976 by:
a) transferring the claimant from the ARU in February 2018;
b) suspending him from firearm use in February 2018;
c) requesting him to withdraw his grievance in February 2018;
d) requesting that he shave off his moustache in February 2018;
e) applying the CAPES policy, specifically section 1.3.
2. Indirect Discrimination
a) whether the second named respondent’s policy on facial hair (CAPES Policy section 1.3) and application of same, indirectly discriminated against the claimant on the grounds of sex, contrary to Article 3A of the Sex Discrimination (NI) Order 1976?
b) if the answer to [a.] above is yes, whether the policy is a proportionate means of pursuing a legitimate aim?
3. Victimisation
Whether the second named respondent victimised the claimant on grounds of his sex contrary (the protected act: grievance raised on 02/02/2018) contrary to Article 6(1) of the Sex Discrimination (NI) Order 1976 by:
a) transferring the claimant from the ARU in February 2018;
b) suspending him from firearm use in February 2018;
c) requesting him to withdraw his grievance in February 2018;
d) requesting that he shave off his moustache in February 2018.
Factual Issues
1. Why was the claimant suspended from his normal duties, transferred station, transferred unit and had his shift cycle changed with three days’ notice on Friday, 2 February 2018?
2. Whether the above was in contravention of SP 58/2007.
3. Who made the decisions referenced at 28.2 above?
4. Has the second named respondent trained the claimant on RPE? If so, why has the second named respondent not trained the claimant on RPE? Is this training necessary?
5. Did the second named respondent prevent the claimant from returning to his normal police role, duty station, unit and shift cycle until he had withdrawn his internal grievance and shaved off his moustache? If so, why?
6. Are Constables Maguire, White and Black appropriate comparators?
7. If so, are Constables Maguire, White and Black permitted to be in breach of the CAPES (were previously the Uniform Dress Code) policy and having hair that sits below the collar?
8. Has the second named respondent not taken any action against these officers? If not, why not?
9. Whether the CAPES policy has a detrimental impact on male police officers who may be required to wear RPE? If so, whether the second named respondent has sufficiently considered the negative impact that the CAPES policy would have on male officers?
10. Whether the second named respondent considered alternatives to section 1.3 of the CAPES policy, prior to implementing same? If so, what were they?
11. Whether the second named respondent was aware of, or considered, HSG 53 ‘Respiratory Protective Equipment at Work, A Practical Guide’? Is this guide relevant?
12. Whether the ‘catch all’ second named respondent definition of facial hair unnecessarily restricts the rights of male officers?
13. Whether the second named respondent considered the welfare of the claimant in their course of action, so as not to cause a negative effect on the claimant’s mental and physical health?
14. Whether the second named respondent considered how much professional embarrassment and humiliation their course of action would cause the claimant?
15. Where in the CAPES policy does it show that ‘Corporate Appearance’ is a driving factor, other than on health and safety grounds, to preclude male officers, within the Armed Response Unit from wearing facial hair?
16. What were the circumstances of the implementation of the facial hair policy as set out in the ‘Corporate Appearance and Protective Equipment Standards’ (CAPES)?
17. Whether the primary aim of CAPES was to protect officers and staff who wear Respiratory Protective Equipment (RPE)?
18. Whether the policy was a proportionate means of achieving a legitimate aim in the corporate appearance and the protection of officers and health and safety grounds?
19. What were the circumstances surrounding the non-compliance by the claimant in relation to the CAPES policy in the ARU?
20. How was the claimant’s non-compliance managed?
21. Why was the claimant transferred?
22. If the claimant is successful in some or all of his claims, what detriment has the claimant suffered?