A police constable has won a sex discrimination claim after a Tribunal found the Police Service of Northern Ireland was wrong to transfer him out of his unit for refusing to shave off his moustache.

What was the background?

In January 2018, the Police Service of Northern Ireland (PSNI) introduced new health and safety policy. It stated that officers “routinely” required to wear respiratory protective equipment at short notice as part of their duties had to be clean shaven.

Prior to the new policy,  the claimant, Constable Downey, wore a beard. In anticipation of the introduction of the new policy he shaved off his beard but retained a moustache. A test to ensure the equipment worked as intended was carried out…his moustache did not interfere with the seal or valves of the respirator.

When PC Downey refused to shave off his moustache in February 2018, PSNI transferred him out of the armed response unit to roads policing.

At the Tribunal, PC Downey compared his treatment to two female officers in the unit whom both had long hair. The PSNI policy stated: “In the interests of health and safety, hair should be worn so that it is cut or secured above the collar.”

The two female officers had long hair which was not secured above the collar during deployment. Neither of the female officers were require to cut their hair – nor did they face redeployment to alternative duties.

The female officers were unable to secure their hair above the collar because of their ballistics helmet; instead they would wear pony tails, which the tribunal heard constituted a “grab risk” where they could be overpowered.

“To be turfed out of the unit, with little or no notice, for refusal to shave off a moustache, which doesn’t affect the equipment I’ve been issued with, is total madness.

 

The policy itself was being enforced against men under health and safety grounds, and yet females within our unit had hair in contravention of the same policy, not facial hair but head hair, where there was a grab risk.”

Constable Downey to BBC Northern Ireland

What did the Tribunal decide?

The PSNI argued that the female officers were not appropriate comparators, but the Tribunal disagreed.

The unanimous decision of the Tribunal was that Constable Downey was discriminated against contrary to the Sex Discrimination (NI) Order 1976. Downey’s claims for direct and indirect sex discrimination succeeded, but a claim for victimisation was dismissed.

The Tribunal finds that the PSNI could reasonably have required the female officers deployed within the ARU 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 PSNI, as it has failed to persuade the tribunal that it corresponded with a real need of PSNI at that time.”

Employment Judge Gamble

The unanimous decision of the tribunal was that Downey was discriminated against contrary to the Sex Discrimination (NI) Order 1976. Downey’s claims for direct and indirect sex discrimination succeeded, but a claim for victimisation was dismissed.

PSNI was ordered to pay Constable Downey £8,500 for injury to feelings plus lost overtime and interest, totalling £10,000.

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