Worthingtons Solicitors represented the claimant, Mr Gordon Downey, against the Police Constable of the Police Service of Northern Ireland (PSNI) in relation to the successful pursuit of a sex discrimination complaint, the decision of which was handed down by the Industrial Tribunal on Friday 4th October 2019. The tribunal determined the claimant was discriminated against, both directly and indirectly, in relation to the application and enforcement of a policy.

The issue arose in January 2018 when the PSNI introduced a version of a policy which sought to identify minimum standard requirements when it came to uniform and personal appearance, together with identifying safety equipment, to include safety masks. Part of this policy stated “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 Protective Equipment (RPE) at short notice and must therefore always remain clean shaven whilst on duty.”

In February 2018, when the claimant had stated to his employer that he would not be removing his moustache on the basis that he believed such a request from his employer to be discriminatory, the PSNI, with little notice, transferred the claimant from his local Armed Response Unit (ARU) to a Road Trafficking Unit, suspended him from firearm use and requested that he shave off his moustache if he wished to return to the ARU. The claimant contended that this was a discriminatory act, given the fact there were female officers at that time who were non-compliant with the policy in so far as those females did not wear their hair above shoulder length, which presented a grab risk. The tribunal believed this to be direct sex discrimination, accepting the two female officers as adequate comparators.

Furthermore, and significantly, the tribunal determined that the application of the Corporate Appearance and Protective Equipment Standard (CAPES) Policy was indirectly discriminatory, as the PSNI were incapable of justifying the policy on Health and Safety grounds. The tribunal were not satisfied that the PSNI considered other alternative measures when the PSNI ordered that police officers were to be entirely clean shaven for the safety masks to be effective. The tribunal, in reaching this decision, determined that at the time the policy was introduced, the ARU unit would have been incapable of being deployed as their officers had not been tactically/operationally trained in the use of the safety masks, that the canisters attached to the masks had expired and the Equality Impact Assessment had been undertaken some five months after the introduction of the policy. The tribunal held this simply was not good enough.

The claimant in this case received an award of £10,000.00 for injury to feelings and the tribunal also recommended that the PSNI review the operation and wording of the relevant section of the impugned policy.

Practical Lessons

If employers have a policy such as this, they should ensure that it does not have a disparate impact on any particular category of society more than others and if it does, they should ensure that they a legitimate aim for the policy which is capable of being justified.  This would undoubtedly involve consideration of other alternatives in the first instance.  An Equality Impact Assessment would be recommended before such a policy is introduced.

This case review was written by Niall McMullan.  NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/