A police constable has won a sex discrimination claim after an industrial tribunal found that the Police Service of Northern Ireland was wrong to transfer a firearms officer out of his unit for refusing to shave his moustache.
The case relates to a new health and safety policy introduced by PSNI in January 2018. It stated that officers “routinely” required to wear respiratory protective equipment (RPE) at short notice as part of their duties had to be clean shaven.
Prior to December 2017 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 RPE worked as intended was carried out on Downey and showed that his moustache did not interfere with the seal or valves of the respirator.
When Downey refused to shave off his moustache in February 2018, PSNI transferred him out of the armed response unit (ARU) to roads policing.
At tribunal, the claimant compared his treatment with two female officers in the unit, both of whom 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.”
It was not disputed that both officers had long hair not secured above the collar during ARU deployment. Neither officer was subject to a requirement to cut their hair, or 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.
Interviewed by BBC Northern Ireland, Constable Downey said: “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.”
He added: “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.”
The respondents argued that the female officers were not appropriate comparators, but the tribunal disagreed.
In her tribunal decision, Judge Gamble said: “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.”
She added: “The tribunal has no issue in accepting that some restriction of facial hair in the case of officers who may have had to deploy using RPE is justified. The claimant also accepts the necessity of some restriction on facial hair.
“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.”
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 Downey £8,500 for injury to feelings plus lost overtime and interest, totalling £10,000.
Niall McMullan a partner at Worthingtons Solicitors, who represented Downey, told the BBC: “This is a significant ruling by the industrial tribunal, because it has essentially declared that the current PSNI policy is discriminating indirectly against males, in as far as the application of the policy is concerned.
“I would like to see serious steps taken by the PSNI in relation to this decision. The tribunal were unequivocal in so far as they want the PSNI to review this decision and to ensure it has a less discriminatory effect on not just my client, but all male officers who it is relevant to.”
A spokesperson for PSNI said it was aware of the tribunal’s findings and was currently examining the detail.