There has been an interesting decision from the Industrial Tribunal in Northern Ireland which has ruled that a male police officer was the victim of both direct and indirect sex discrimination when he was transferred out of his Unit for failing to shave off his moustache.
The police officer in question – Constable Downey had previously sported a beard and moustache, however in December 2017 he shaved off his beard but retained his moustache.
In January 2018 the Police Service of Northern Ireland (PSNI) introduced a new health and safety policy where police officers were routinely required to wear respiratory protective equipment at short notice.
Constable Downey had agreed to shave off his beard to accommodate the new policy, but he kept his moustache following a test that was undertaken on him to ensure that the respiratory protective equipment he was required to wear, worked as intended. The test that was undertaken on him confirmed that his moustache did not interfere with the seal or valves of the respirator.
He was then required to shave off his moustache in February 2018, however he refused to do so and as a consequence he was then transferred out of the Armed Response Unit to Roads policing.
As part of his challenge, Constable Downey compared his treatment with two female comparators in the Unit where the 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 two female comparators had long hair which was not secured above the collar during the time they worked with the Claimant and which they wore in ponytails which instead constituted a grab risk. Neither of the female officers were redeployed or faced alternative duties and were allowed to continue working in the Unit.
The PSNI argued that the female officers were not appropriate comparators, but the Industrial Tribunal disagreed.
Instead the Tribunal Judge stated that ‘The Tribunal finds that the PSNI could reasonably have required the female officers deployed within the Armed Response Unit 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………however the Tribunal finds that a complete ban on facial hair has not been justified by the PSNI as it has failed to persuade the Tribunal that it corresponded with a real need of the PSNI at that time.’
The Tribunal therefore unanimously found that Constable Downey was discriminated against contrary to the Sex Discrimination (NI) Order 1976 and his claims for both direct and indirect sex discrimination were successful. However, he did not succeed in his victimisation claim.
Consequently, the PSNI as the employer were ordered to pay to Constable Downey the sum of £8,500 for injury to feelings plus a sum for lost overtime and interest of £1,500.
Although this is a first instance decision it is important because it highlights that dress code policies even where they are introduced on health and safety grounds must be applied consistently across the board for both male and female employees.
The sums awarded were relatively small however the bad publicity that this case has promoted is much more damaging to the reputation of the wider PSNI.
If you have any concerns about dress codes in your workplace then you are advised to contact Steven Eckett , Partner and Head of Employment on 020 7703 5034 or by e-mail firstname.lastname@example.org
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