United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS ALISON HEWITT (of Counsel) Instructed by: The Treasury Solicitor 1 Kemble Street London WC2B 4TS
For the Respondent	MR ANGUS HALDEN (of Counsel) Instructed by: Messrs Augustines Solicitors St Augustines Yard Orchard Lane Bristol BS1 5ED

SUMMARY

Sex Discrimination

The Employment Tribunal was entitled to find that the hypothetical comparator for a female prison officer conducting a rub-down search of a male prisoner was a male prison officer conducting a rub-down search of a female prisoner despite the fact that a male prison officer was not permitted to carry out such a search.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal from the Judgment of an Employment Tribunal sitting in Birmingham on 18-20 October 2004. The Chairman was Ms J Heal and the members were Mr M Titley and Mrs J Clarke. The unanimous judgment of the Tribunal was that the Appellant had discriminated against the Respondent under s1(1)(a) of the Sex Discrimination Act 1975. A separate complaint of victimisation under s4 of that Act was dismissed.

The Material Facts

2. The Employment Tribunal found the following facts:

8. The history of this case is not in dispute. Mrs Saunders began work for the Prison Service on 5 May 1987. In 1992 she applied for a transfer to Long Lartin Prison, a male, high security prison. One of the reasons she gave for the application was that she felt she would "fit in" better at a male establishment. She explained to us in evidence, and we accept, that she found a men's prison to be a more "normal" environment, than a woman's prison which she found 'noisy'.

9. When Mrs Saunders joined the prison service, rule 39 of the Prison Rules stated:

'(1) Every prisoner shall be searched when taken into custody by an officer, on his reception into prison and subsequently as the governor thinks necessary;

(2) A prisoner shall be searched in as seemly a manner as is consistent with discovering anything concealed;

(3) No prisoner shall be stripped and searched in the sight of another prisoner or in the sight or presence of an officer not of the same sex

(4) A prison shall be searched only by an officer of the same sex';

10. On 8 May 1992 a submission was prepared to seek Ministers' agreement to amend rule 39 so as to allow female prison officers to carry out rub-down searches of male inmates. It was thought that to do otherwise would inhibit female officers' career prospects.

11. That submission was accepted and the changes were effected by deleting rule 39(4). On the face of it, that produced a rule that applied evenly to both men and women prison officers. It allowed men to search women and vice versa. However there was a perceived risk that female inmates would object to being searched by a man on grounds of privacy and decency. It was not thought that restricting the power of male officers to search female inmates would inhibit their career prospects.

12. Therefore, by circular instruction no 49/92 addressed to all prison establishments (dated 29 October 1992) prison management were instructed not to permit male prison officers to search female inmates. Paragraph 7 of that instruction also stated:

"Female officers who are posted to male establishments should understand that they may now be required to carry out rub-down searches of male inmates."

13. How a decision to allow women to carry out such searches became a requirement that they must do so is unclear, and was a matter of speculation amongst the respondent's witnesses. Nevertheless a Review of Searching in 2001 confirmed the position and at a P.O.A. Management Meeting the governor confirmed too that female staff would be disciplined if they refused to carry out rub-down searches on male inmates.

14. A rub-down search is one of the less intrusive varieties of search (compared with, say, a strip search). During such a search the person being searched remains clothed. Amongst other things, during the search the prison officer has to:

'(i) using the open hand with the fingers spread out comfortably, check the front of the inmate's body from neck to waist, the sides of the body from under the armpits to the waist; and the front of the inmate's waistband; .

(j) check the inmate's back from collar to waist, the rear of the waistband and the seat of the trousers;

(k) check the front of the abdomen and the front and sides of each leg…'

15. Mrs Saunders explained to us and we accept that in practice this meant that the searcher came into contact with the inmate's flesh when checking the waistband. The searcher touches the seat of the trousers outside the clothing and has to run her hands down the inside of each leg starting at the crutch.

16. Mrs Saunders had been trained to carry out such a search on women. The act of carrying out such a search on a man gave her great concerns. In her own words, 'I would be scared of touching things I shouldn't'. She found the idea degrading and distasteful and could not bring herself to do it. Furthermore some male inmates will make comments of a sexual nature when being rub-down searched by a female officer. These remarks have reduced in frequency since female to male searches were first introduced but they have not disappeared. A female officer carrying out such a search simply has to develop a "thick skin". An inmate making such remarks may be disciplined as a result but the cost to the female officer is that she is placed in a position of conflict with the inmate. Even women who have not refused to carry out such searches feel ill at ease when doing so and they are aware that that feeling of discomfort may lead them to carry out the task inefficiently.

17. Although Mrs Saunders originally protested at the situation, her protests were not taken up by management. She resolved the situation pragmatically by taking legitimate steps to avoid rub-down searching with the sympathetic help of colleagues. Mr Masserick (the "Governing Governor") was not aware of the situation however.

18. On 13 November 2003 Senior Officer Foxall asked Mrs Saunders if it was correct that she would not carry out a rub-down search on an inmate, she confirmed this and explained her feelings about it to him. Mr Foxall took the view however that it was his role to ensure that rules were complied with; his integrity could not accept a "fudge" of the situation. He therefore gave Mrs Saunders a direct instruction to carry out a rub-down search. She refused.

19. An inquiry was started during the course of which Mr Evans offered Mrs Saunders the choice of further training or transfer to a female prison. Mrs Saunders did not consider that training would make a difference.

20. At some point during the period that followed Mrs Saunders told Mr Masserick that she thought the requirement that she rub-down search men was discriminatory on grounds of sex.

21. On Tuesday 6 January 2004, Mr Sidney, Head of Operations Governor told Mrs Saunders that there was to be a formal investigation into her refusal to rub-down search male prisoners and that, she was also to spend a period of detached duty at H.M. Prison Brockhill. H.M. Prison Brockhill is a women's prison about 40 miles from Mrs Saunders' home. (Long Larkin is about 17 miles from her home).

22. The following day Mrs Saunders reported for duty at H.M, Prison Brockhill. She found that staff there assumed that she had been transferred because she was under a disciplinary investigation. After one day there she was signed off sick from work.

23. Mr Masserick took the decision to transfer Mrs Saunders to Brockhill. He told us and we accept, that the problem facing him was this. Although there had previously been a collaborative approach by staff to help Mrs Saunders avoid rub-down searching men, he had not known of that situation. Now, as Governing Governor, he knew of Mrs Saunders' stance. He had to ensure that senior management were not seen as being selective about the rules. He weighed up four possible options:

(1) do nothing and investigate meanwhile;

(2) put Mrs. Saunders in a job at Long Lartin where there was no likelihood of her having to carry out a rub-down search;

(3) send Mrs Saunders on detached duty elsewhere;

(4) suspend Mrs Saunders.

24. For the reasons set out in paragraph 23 above he found (1) and (2) unacceptable. He thought that suspension was unjustified because in his view it makes the suspended person feel that any later action has been pre-judged. He regarded suspension as "the nuclear option". On the other hand, H.M. Prison Brockhill was a near neighbour that was always struggling for staff. Detached duty would allow a period of calm during which things could be allowed to settle. That therefore was the option to which he felt attracted.

25. He said, and we accept, that he would have sent Mrs Saunders on detached duty for all those reasons whether or not she had suggested that the requirement to rub-down such men was discriminatory".

The Employment Appeal Judgment

3. With regard to the claim for direct discrimination, the Employment Tribunal reached the following conclusions:

44. We consider that the correct comparator is that of a male prison officer conducting a rub-down search on a female. We have considered this issue with great care, knowing that the characteristics of the comparator are likely to be determinative of the outcome. If we accept the comparator suggested by the respondent, that leaves out of account the material factor of searching a person of the opposite gender. A man searching a man will have quite different feelings about the process -and will receive a quite different response from the inmate -from a man searching a woman. It is we think much easier for most people searching a person of the same gender to maintain an entirely professional approach and to distance themselves from any sexual self consciousness. It may well be that many women, by exercising strength of mind, will be able to carry out a cross gender search. A man however is not required by the prison service to exercise that strength of mind. He is entirely protected from the possible feelings of inappropriate self-consciousness, from the innuendo and possible allegations of misconduct that might arise because the prison system forbids him from carrying out a search on a woman.

45. That analysis helps us to answer the question of whether the treatment of requiring the cross gender search is less favourable treatment than a man would receive. We consider that it is less favourable treatment to ask a woman to overcome her feelings of distaste and indecency, as well as to deal with inappropriate comments when a man is not asked to do the same. That being the case, we do not need to ask whether the other matters set out in the further and better particulars amount to less favourable treatment. We consider too that the treatment of requiring a cross-gender search amounts to a detriment for the same reasons.

46. We accept Mr Halden's submission that what he attacks is the treatment of requiring the search. That is the less favourable treatment. The relevance of the policy behind it is that it reveals to us that the treatment is on grounds of sex. This we think is confirmed by Miss Hewitt's realistic acceptance that this is not a case that needs an analysis based on Section 63A. There is no need to draw inferences because the policy makes the matter clear.

47. We have little doubt that in the light of this decision the underlying issue will be a difficult one for the Prison Service to resolve so as to remove all possible claims of discrimination. This is not however an indirect discrimination claim. It is not open to us to look at issues of justification. We have to determine whether there is direct discrimination on the facts of this case.

48. Similarly it does not help the respondent that their original intent was to advance the career prospects of women. One may discriminate with the best of intent, yet that discrimination will be unlawful if Section l(l)(a) of the 1975 Act applies.

49. We wish to make it clear however that the witnesses for the respondent – and especially Mr Foxall - do not fall into the usual category of unlawful discriminators. Mr Foxall subjected Mrs Saunders to unlawful discrimination because he felt he was bound to do so by the rules. There is no suggestion by the claimant that he is a man who would by his nature treat women less favourably.

The Grounds of Appeal

4. The Notice of Appeal sets out various grounds of appeal which were supplemented by the Skeleton Argument and oral submissions of Ms Alison Hewitt of Counsel. The Respondent was represented by Mr Angus Halden of Counsel. We are grateful to both of them for their assistance in this appeal. We take each of the grounds of appeal in turn, but before doing so, note that there is no cross-appeal by the Respondent against the finding that there was no victimisation.

Ground 1

5. Ms Hewitt submits that the Employment Tribunal erred in law in failing to identify the correct comparator as a "male prison officer being ordered to carry out a rub-down search on a male inmate". The Tribunal found that the correct comparator was a "male prison officer conducting a rub-down search on a female".
6. Section 5(3) defines what is meant by comparator for the purposes of direct discrimination. It says this:

"(3) A comparison of the cases of persons of different sex or marital status under Section 1(1) or 2 or 3(1), or a comparison of the cases of persons required for the purposes of Section 2(A), must be such that the relevant circumstances in the one case are the same, or not materially different, in the other".

7. Two decisions of the House of Lords throw some light on the meaning of this section. In Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 Lord Hope said this at paragraph 39:

"The obvious questions with these provisions are: with whom should the comparison be made and which circumstances are to be considered as relevant: see Daniel Peyton, Sex and Race Discrimination [p 27] para 3.2.5. But these issues are by no means straightforward. As Sandra Fredman Discrimination Law (2002) pp 96-99, has explained, the need for a comparator has been one of the most problematic and limiting aspects of direct discrimination as defined in the legislation about discrimination on grounds of sex and race. The requirement is less harsh than in the legislation about equal pay, as the provisions about discrimination on grounds of sex and race permit a 'hypothetical' comparison, based – in a sex case, for example – on the question of how the woman 'would' be treated if it is not possible to find an actual comparator. Nevertheless, the choice of comparator requires that a judgment must be made as to which of the differences between any two individuals are relevant and which are irrelevant. The choice of characteristics may itself be determinative of the outcome: see Secretary of State for Defence v. MacDonald [2001] IRLR 431 and Pearce v. Governing Body of Mayfield Secondary School [2001] EWCA Civ 1347, [2001] IRLR 669. This suggests that care must be taken not to approach this issue in a way that will defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex in all the areas in which it deals".

We emphasise the last part of that passage.

8. We are also referred to MacDonald v Advocate General for Scotland [2003] IRLR 512 and in particular to the analyses of Lord Hope at paragraphs 63-85 and Lord Scott at paragraphs 113-114.
9. It is quite clear in this case that the Respondent at the Employment Tribunal relied upon a hypothetical comparator and not an actual comparator. She was entitled to do so: Sex Discrimination Act 1975, s1(1)(a) and Balamoody v UK Central Council for Nursing Midwifery & Health Visiting [2002] IRLR 288. Such a hypothetical comparator satisfies the requirement of s5(3) of the Sex Discrimination Act 1975. It seems to us that the Employment Tribunal were entitled to find that the hypothetical comparator in this case was a male prison officer who was required to conduct a rub-down search on a female: Judgment paragraph 44. In other words, the over-arching principle here is the requirement for a prison officer to conduct a rub-down search of a prisoner of the opposite sex. Such a search is prohibited in a case of a male prison officer conducting a rub-down search of a female prisoner by Home Office Circular Instruction No. 49/92: Judgment paragraph 12. It follows that Mrs Saunders was subject to direct sex discrimination in being required to carry out a rub-down search of a male prisoner when a male colleague was specifically prohibited from carrying out a rub-down search of a female prisoner. To hold otherwise would be to "defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex in all the areas with which it deals": per Lord Hope in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 at paragraph 39.

Ground 2

10. The second ground of appeal is a criticism that the Employment Tribunal concerned itself not with the act complained of by the Claimant but with the Appellant's general policy and practice concerning cross-gender rub-down searches and it was not entitled to do so. Alternatively, Ms Hewitt submits that the judgment of the Tribunal failed to take sufficient account of the Appellant's evidence as to the history of the changes in practice and the Prison Rules.
11. The history of the practice of searching of prisoners was put before the Tribunal by the Respondents. It called witnesses to show the evolvement of the practice of prisoner searches. Ms Hewitt was unable to point to any particular passage in the Employment Tribunal decision where the Employment Tribunal founded their decision upon the policy itself as set out in Rule 39 of the Prison Rules and Home Office Circular Instruction No. 49/92. Indeed, in our judgment, the Employment Tribunal specifically take the opposite position: Judgment paragraphs 35 and 46. The Employment Tribunal were fully entitled to take the approach they did which was to the specific facts of the case. The matter was fully argued before them by experienced Counsel on both sides.

Ground 3

12. Ground 3 submits that the Employment Tribunal were in error in finding that Mrs Saunders had suffered less favourable treatment and detriment in asking Mrs Saunders to overcome her feelings of distaste and indecency, as well as to deal with inappropriate comments when a man is not being asked to do a cross-gender search: Judgment paragraph 45. As can be seen from paragraph 3 of the Employment Tribunal's judgment, Mrs Saunders gave evidence herself and was cross-examined. The Appellant agreed that other witness statements could be read. Some of those witness statements were from other female prison officers. The evidence was not challenged in cross-examination. The Employment Tribunal were entitled to accept that evidence of the feelings of distaste and indecency which Mrs Saunders felt having to conduct a cross-gender search. It seems to us that the answer to this ground of appeal is entirely a question of fact. It does not appear that the Appellant challenged this evidence in any meaningful way at the Employment Tribunal and we do not see how it is open to it to challenge the Employment Tribunal's conclusion on both the issues of less favourable treatment and detriment.
13. On the issue of less favourable treatment, it is sufficient to refer to Birmingham City Council ex parte Equal Opportunities Commission (EOC) [1989] AC 1155 and Gill v El Vino Co Ltd [1983] IRLR 206. These cases were not cited to us by Counsel but they are positions of clear authority and long standing. On the issue of detriment, it is sufficient to refer to the statement by Lord Hoffman in Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 at paragraph 53 to the effect that the Courts have given the term "detriment" a wide meaning. We respectfully agree and have no doubt that it was well within the province of this Tribunal to find that on the facts of this case, the Claimant had suffered detriment within the meaning of the Sex Discrimination Act 1975.

Conclusion

14. For these reasons, the appeal is dismissed.