Background: 

The claimant had a long and distinguished career with the PSNI.   She was appointed to the role of District Commander in Derry City and Strabane in January 2020.  This role involved a long commute for the claimant – approximately two hours each way from and to her home.   

The issues leading to this case started in April 2020, at the height of the Coronavirus pandemic, when the claimant became aware that there were Officers who remained at home whilst on duty.  The claimant disclosed this to her line manager noting that it was a critical incident and apologised that it was happening on her watch.  The claimant stated that she was going to organise meetings with all officers and ‘rollick’ them.  There were further worries such as officers claiming overtime when not at work which were disclosed. 

The claimant held the meeting with the officers and as a result there were a number of complaints made about the claimant’s conduct.   Those complaints cited that she was aggressive; the claimant disputed this but did accept that she said ‘Do you think I got here by being a twat?’.  The complaints made led to a Regulation 16 notice (relating to misconduct) served on the claimant although this was subsequently withdrawn.  This was following an independent review outlining that the ‘inescapable conclusion drawn was that the assessment of the claimant’s conduct as gross misconduct lay outside the bounds of reasonableness’.  

The claimant went for the role of Temporary Assistance Chief Constable in September 2020.  In receiving feedback, the claimant became upset and asked whether the Chief Constable still had confidence in her.  She indicated that there was a strain in the travel and in the nature of the accommodation available to her.    She stated that she dreaded going to work but that she had not asked to move; she outlined that it was difficult to cope when she was under investigation for misconduct.   

The Senior Management Appointment Panel sat in September 2020 and made the decision to transfer the claimant from her post to one at the Police College. The Chief Constable nor the Deputy Chief Constable disclosed that the Regulation 16 notice had been rescinded.  The claimant felt that her role in Derry and Strabane was unfinished and her preference was to stay. The claimant was informed that the reason for the decision was based upon a positive assessment of her suitability to head up the College as well as for her welfare considering the travelling.  However, the new appointment, male, lived ‘around the corner’ from the claimant and had a similar journey time.  

Outcome: 

The Tribunal accepted the claimant’s claims.  On the detriment it was found that the complaints made by colleagues and serving the Regulation 16 notice were linked to the protected disclosures made in relation to colleagues staying at home when they were supposed to be on duty.  There were also failures during the misconduct investigation such as not interviewing the claimant and not notifying the claimant of updates which were seen to be detriments. 

On sex discrimination it was found that the claimant was treated less favourably than a hypothetical comparator in relation to the complaints made against her.    She gave unchallenged evidence outlining how other senior officers were unable to fathom why an investigation had been commenced based upon the circumstances.  Her line manager was aware of what was going to be discussed in the meeting and that it was expected that she would deal with issues in her section.  This less favourable treatment was seen to follow through into the Regulation 12 and 16 notices, the procedural failings and the decision to move the claimant.   On the move, the Tribunal noted that the claimant was treated differently based upon her sex noting that resilience does not have any gender specific quality but when placed alongside reference to an ‘emotional text’ it becomes tainted with considerations of gender stereotyping. As a result, the claimant was awarded £31,104.72 for the acts of detriment and discrimination. 

Practical Guidance for Employers: 

The need to follow policy is clear and it is no different here.  The actual application of policy and how to handle complaints must be the same regardless of the protected characteristics.  In this case, it was found that the application of the policy was based upon the disclosures that were made and the protected characteristic (sex) of the claimant.  Most notably, the decision to move the claimant was seen to be based upon welfare and travel yet the replacement had the same issues with travel.    Employers must be mindful of ensuring that stereotypes of being more emotional and less resilient are not tainting a view or factors in making decisions. 

NI Tribunal decisions are available on the OITFET website: 
http://www.employmenttribunalsni.co.uk/