Police service discriminated against officer with moustache

A police constable has won a sex discrimination claim against the Police Service of Northern Ireland (PSNI) after an industrial tribunal ruled that PSNI acted unlawfully by transferring the officer out of his unit for refusing to shave his moustache to comply with a health and safety policy regarding use of respiratory protective equipment. The police constable successfully argued that he had been treated unfavourably compared to female colleagues whose long hair also breached the policy but who were not required to cut their hair or face redeployment.

Relevant Legal Principles

Many employers require their employees to comply with a dress or grooming code. For the most part these codes are legal as long as they are not discriminatory. An employer can be guilty of indirect discrimination if it applies a rule that is the same for everyone, but has an unequal or disproportionate effect for a specific group of people. Dress or grooming codes will amount to indirect discrimination if they negatively impact on a group sharing a protected characteristic (i.e. sex, age, disability, sexual orientation, race, age, religion or belief) and, if they do, the employer cannot justify them as a proportionate means of achieving a legitimate aim; for example the health and safety of their workforce. This was the argument relied on by the employer in the following case.

Facts

In 2018, PSNI introduced a ban on facial hair for officers required to wear respiratory protective equipment (RPE) as part of their duties because it was believed that facial hair might interfere with the face mask’s seal and prevent it from working effectively.

The Claimant was a police constable serving in an armed response unit (ARU) and, as such, might have to use RPE. In anticipation of the introduction of the new policy for RPE, he shaved off his beard but kept his moustache. He demonstrated that the RPE continued to work as intended. Despite this, he was ordered to shave off his moustache to comply with the policy and, when he refused, PSNI transferred him out of the ARU to roads policing.

Claim

The Claimant challenged the ban on facial hair at an industrial tribunal in Northern Ireland on the basis of sex discrimination. He compared his treatment with two female officers in the ARU. The same policy that banned facial hair also required head hair to be worn so that it was cut or secured above the collar. The Claimant alleged that the female officers had long hair not secured above the collar during ARU deployment. The female officers were unable to secure their hair above the collar because of their ballistics helmet; instead they wore their hair in pony tails. Neither officer was subject to a requirement to cut their hair, or face redeployment to alternative duties.

Tribunal decision

The tribunal upheld the Claimant’s claim for sex discrimination and awarded him £8500 for injury to feelings plus lost overtime and interest, totalling £10,000.

The tribunal agreed that the Claimant had been treated less favourably than the female officers. It ruled that the PSNI could have required those officers to cut their hair shorter to allow the hair to be secured under their ballistics helmet or face a transfer out of the ARU.

While the tribunal accepted that some restriction of facial hair in the case of officers who may have had to deploy using RPE was justified, a complete ban on facial hair had not been justified by PSNI on the grounds of health & safety.

Gordon Downey – v – Garrath McCreery & Chief Constable of PSNI 4182/18IT

Comment

Despite the ruling in this case, employers should not be afraid of setting standards for their employees’ appearance. However, they should ensure that they have a legitimate reason for their dress and grooming requirements. An employer can be guilty of indirect discrimination if it applies a rule that is the same for everyone, but has an unequal or disproportionate effect for a specific group of people. Such rules will amount to indirect discrimination if they negatively impact on a group sharing a protected characteristic (i.e. sex, age, disability, sexual orientation, race, age, religion or belief) and, if they do, the employer cannot justify them as a proportionate means of achieving a legitimate aim.

Warning: this news item is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This news item is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article.