Mr R Ford and Mr L Woodward v The Chief Constable of Suffolk Constabulary: 3308660/2024 and 3308661/2024
EMPLOYMENT TRIBUNALS
Case No 3308660/2024, 3308661/2024
Between
Mr R Ford and Mr L WoodwardClaimantThe Chief Constable of Suffolk ConstabularyRespondent
Before
Employment Judge M WarrenMr D Stephenson (instructed by Counsel) for claimantMr T Dracass (instructed by Counsel) for respondentDate 12 January 2026
JUDGMENT
[1]Mr Ford’s complaint of direct sex discrimination is well-founded and succeeds.[2]Mr Woodward’s complaint of direct sex discrimination is well-founded and succeeds.[3]The Tribunal makes the following recommendations: the Respondent apologise to each of the Claimants for transferring them from their assigned team for the purpose of replacing them with female police officers.[4]The respondent shall pay Mr Ford £11,483.28 made up of £10,000 injury to feelings and £1,483.28 interest thereon.[5]The respondent shall pay Mr Woodward £11,483.28 made up of £10,000 injury to feelings and £1,483.28 interest thereon. Approved by: JUDGMENT having been given to the parties on 9 January 2026 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunal Rules of Procedure 2024, the following reasons are provided:
REASONS
[1]The Claimants are Police Officers in the Respondent Police Force. After Early Conciliation between 29 May and 10 July 2024, they both issued these proceedings on 8 August 2024 claiming direct and indirect sex discrimination.[2]Their claims of indirect discrimination were dismissed upon withdrawal at a Preliminary Hearing before Employment Judge Michell on 26 March 2025. EJ Michell set up this Final Main Hearing.
The Issues
[3]The issues in this case are set out in an Agreed List of Issues that I have been provided with by the parties, amended slightly at the outset of the case in respect of the identity of the hypothetical comparator contended for. They are as follows:- Direct sex Discrimination (s.13 EqA 2010
The Issues
[1]Have the Claimants established that the following conduct occurred as alleged? The Claimants rely on the following alleged less favourable treatment set out at paragraph 44 of the Particulars of Complaint. Namely: a. Removing them from the South Kestrel Team on 4 March 2024.[2]If so, did the Respondent treat the Claimants less favourably than it did or would have treated others in the same circumstances? The Claimants rely upon a hypothetical comparator. Are the relevant circumstances:a. As the Claimants contend, i.e. a hypothetical female in the South Kestrel team as at the material time who would have been removed against their wishes to rebalance the sex ratio of the team; orb. As the Respondent contends a hypothetical female officer working within a similarly comprised single sex, (i.e. an all-female Kestrel team, in circumstances where is was decided that there was an operational need to introduce officers of the opposite sex, (i.e., male officers) into that team.[3]If the treatment occurred as alleged, was such treatment because of the Claimants’ sex? i.e. have the Claimants proved facts from which the ET could properly conclude that they were treated less favourably because of their sex? Genuine Occupational Requirement (Para. 1, Sch 9 of EqA 2010)[4]Did the Respondent apply in relation to work, a requirement to have a particular protected characteristic, i.e. sex?[5]Having regard to the nature and context of the work, was it an occupational requirement?[6]If so, was the application of said requirement a proportionate means of achieving a legitimate aim? The Respondent relies on the following legitimate aims:a. To deliver an effective and efficient service;b. To meet the diverse needs of communities, victims and offenders;c. Compliance with best practice, guidance and protocols regarding the rights of suspects to be searched by an officer of the same or a preferred sex particularly in the area of strip search;d. Having regard to public opinion and / or public expectation regarding access to an officer of a particular sex for those who are vulnerable;e. Enhancing delivery;f. Improving public confidence and legitimacy in response to national reviews into policy; andg. Improving engagement with female victims, offenders and communities and increasing community confidence.[7]Did the person(s) to whom it was applied meet the requirement?
Remedy
[8]If the Tribunal finds that the Claimants’ claims under the Equality Act 2010 are well founded:a. Is an injury to feelings award appropriate in the circumstances?b. If so, how much should this injury to feelings award be, taking into consideration the bands set out in Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 (EWCA as clarified in Da’Bell v NSPCC UKEAT/0227/09)?c. Is any other financial compensation appropriate?[9]Is it appropriate for the Tribunal to make recommendations? Evidence before me today 4. I have witness statements from Mr Andrew Martin who is a Superintendent in the Respondent Police Force, from each of the Claimants and from the Claimants’ Police Federation Representative, Mr Hudson. 5. I had before me a properly paginated and indexed Bundle of documents running to page number 369. 6. Also helpfully, I have been provided with various other documents. At the start I had an opening note from Mr Dracass, a Chronology incorporating input from the Claimants and a Cast List. Separately from the Claimants I had a Cast List, a Chronology of main events and a list of abbreviations. I had excellent written submissions from both Counsel at the end of the hearing, for which I am grateful. Findings of Fact 7. To begin with, I do not accept the criticisms made of Mr Martin’s evidence by Mr Stephenson in his closing submissions. I found all four witnesses credible and honest in their evidence. 8. The Respondent is a police force. It is acknowledged that a police force may post a Constable to any role at any time, subject to an entitlement to three months’ notice. The Claimants are Police Officers. Mr Woodward and Mr Ford are both Police Constables but Mr Woodward had passed his Sergeant’s exam and whilst still then a Police Constable, he occasionally acted up as a Sergeant. At the time of the events in question, they were both on a team known as Kestrel Team South, based at Ipswich. 9. The Kestrel Team’s purpose is to provide support to each area within the Constabulary, in accordance with its priorities. The entire team would work on a shift together and would be allocated to tasks to help with those priorities. I quote from a leaflet which gives a little information about the Kestrel Teams, included within the Bundle at page 125, “Kestrel Teams will be highly visible, deploying in a mixture of uniform in marked / liveried Police vehicles and plain clothes (when appropriate) tackling neighbourhood crime types and antisocial behaviour (ASB) within the local communities. Crime types targeted will include (but not limited to) which are in line with the Chief Constable’s three years Strategic Plan 2020 / 23: Serious violence; Drug (county lines, gangs and organised crime); Neighbourhood crime and ASB; Residential burglary; Robbery and theft from person; Rural based crime; Crimes involving vulnerability, exploitation (e.g. CSE / modern slavery); and Youth gangs. Taking an intelligence led and problem solving approach they will support the area command in acting on and tackling the issues which matter to local communities.”
Findings of Fact
[10]The Respondent had three such Kestrel Teams: South, under the South Area Command based at Ipswich; West, under the West Area Command based at Bury St Edmunds; and East, under the East Area Command based at Lowestoft.[11]In October 2023, the Kestrel South Team establishment consisted of a Sergeant and six PCs. A female PC had left the Team in the autumn of 2022 on a detachment which became permanent. The vacancy she left was scheduled to be filled; the post was advertised in August 2023 and the closing date for applications was 8 September 2023. It was then, at that time, an all male team. The team was managed by Inspector Linda Turner. She was managed in turn by a Chief Inspector, who in turn was managed by the Superintendent of the South Area Command, Mr Andrew Martin, the witness for the Respondent before me.[12]A new operations structure for the Respondent was scheduled to be introduced in December 2023. As a consequence, the Safer Neighbourhood Teams (SNT) in each area would be reduced in size and capacity and their role title changed to Community Policing Teams.[13]In the course of its duties, if the Kestrel South Team consisting only of men needed to either strip search or search beyond outer clothing a female, it would call for assistance from other teams in the area to supply a female officer. Typically, though not exclusively, that support would come from what was the SNT. The availability of that support would become significantly limited under the new operational structure.[14]It also meant that the Kestrel Teams were to become expected to focus more on warrants, stop searches, so called cuckoo checks, (in relation to properties occupied by innocent vulnerable people used by villains, as I understand it) pulse patrols, (which I understand are short visible patrols in crime hotspots) and disruption visits. All were previously done by the SNTs.[15]The Chief Constable’s Delivery Plan, (page 132) included a particular focus on crime most affecting young people, women and girls. Violence against women and girls, (VAWG) and exploitation, are national, regional and local priorities for policing. I was referred to the National Policing Statement on the subject, (page 117) which includes the following statistics:- “Over 1 million VAWG related crimes were recorded during 2022 / 23, counting for 20% of all Police recorded crime. VAWG related crime increased by 37% between 2018 and 2023. At least one in every 12 women will be a victim each year, with the exact number expected to be much higher. One in every six murders related to domestic abuse in 2022 / 23 with suspected victim suicides following domestic abuse rising year on year.”[16]Ipswich has areas of increased vulnerability relating to sexual assaults, domestic violence, robbery of females, a high number of female street drinkers, rough sleepers, drug users and sex workers. A high number of searches are necessary to combat drug related issues, particularly as a result of county lines.[17]Not only are female officers necessary for searches as described above, they are also seen as intrinsic to good operational practice in these areas, in terms of encouraging victim confidence, disclosures to the Police and building intelligence.[18]Ipswich has a particular problem with male perpetrators approaching lone women. The ability to mount plain clothes operations to counter this were hampered for the Respondent, by the lack of available female officers.[19]Mr Martin recognised these issues and decided that he should ensure his Kestrel Team South should have female police officers to accommodate the practical issues the new operational structure was going to impose and meet the requirements of good policing practice in relation to women, as I have just outlined.[20]On 17 October 2023, Mr Martin emailed an HR Advisor, Ms Rouse, to explain his thoughts, (page 137). He said, “There is an operational need to ensure availability of female officers to support the following: Stop search of female subjects; Strip search of female subjects; Engagement with diverse communities (under represented females, or communities in which cultural hierarchy or expectations require a female officer); Engagement with vulnerable female adults and children, particularly in regards to violence against women and girls. Whilst the law does not preclude the aforementioned, public expectations and best practice supports the use of female officers to undertake certain duties or enhance delivery in the above areas.”[21]Also in the same email, (page 138) Mr Martin states, “With that in mind, I intend to increase the number of female officers on the Kestrel Team which will displace some of the current staff. The intention will be to seek at least two volunteers to leave the team, allowing for a 50 / 50 split of male / female officers. Where there are no volunteers we will look to use performance measures to identify individuals. Female officers will then be chosen on similar metrics to move into the team. Can I please have your initial views and guidance.”[22]Ms Rouse replied to agree with Mr Martin and to offer her help. Mr Martin spoke to the Police Federation’s Mr Hudson on 31 October 2023. Mr Hudson did not raise objections to the proposal. He reminded Mr Martin that the officers to be moved would be entitled to three months’ notice of the change.[23]On 21 November 2023, Mr Martin and Ms Turner met with the Kestrel Team to explain that the plan was to ensure that there would be two female PCs on the team and that it was proposed to achieve this by firstly, recruiting a female officer into the vacancy and secondly, that one male officer would need to move to another team. Mr Martin enquired whether anyone was planning to leave the team. One PC indicated he had applied for another role in Prison Intelligence. Another indicated he was interested in transferring to another team called South Scorpion, on which he understood there were vacancies. Mr Martin told the team that any changes would not be considered until after Christmas.[24]During this latter part of 2023, a Force wide team reduction of one PC per team was imposed on all teams. This meant that the Kestrel South Team was going to be reduced from the establishment of six to an establishment of five and that the current vacancy would not be filled.[25]The new operating model was instigated on 4 December 2023.[26]For reasons I do not need to go into, The two PC’s referred to above, were unable to make the moves that they had hoped for. There were therefore as a consequence, discussions about what method would be used to select which officers should leave the team. Now there was a need to lose two.[27]Both sides in this case spent some time on what method of selection should have been used. The Claimants are not happy that ultimately they were selected to leave because they were said to have been on the team for a longer period of time than their colleagues. Something the Respondents refer to as ‘tenure’. However, we agreed that the method of selection does not form part of the Claimant’s case and I dwell on it no longer, other than to observe the Claimants were not happy.[28]At some point, a different person in HR, a Ms Simpson, was allocated to assist. Following a conversation with Ms Simpson, Inspector Turner wrote on 18 December 2023, (page 148) asking for guidance. The primary concern in this correspondence was the method to be adopted in selecting who was to be transferred out. Ms Simpson replied the next day, (page 147) as follows: “I am sure this will have been covered already via discussions between Kay and Superintendent Martin but I think it is helpful to just go round the loop again regarding the justification of displacement of a male in favour of a female. Generally positive discrimination is unlawful in that recruiting a person because he or she has a relevant protected characteristic rather than because he or she is the best candidate, could be discrimination under the Equality Act. We would need to be sure we are clear that the action (to displace a male for a female) is a proportionate means of achieving the aim of overcoming the relevant disadvantage. We will need to be clear that there is an occupational requirement for positive discrimination in the selection process. … So, if we employ a female into the team we are still looking to displace one male and recruit a female? On the basis you have asked for a volunteer and nobody has put their hand up, I am not confident on a fair way to make that decision, or if we should. I know you mentioned reviewing performance measures as a way to ID a person to post out of Kestrel but I am nervous how we might reasonably go about this. My preference would be that we recruit a female, if that’s what already has been agree, then review if this is sufficient to overcome the relevant disadvantage. If it’s not, and we deem this appointment to be critical in order to avoid operational risk, then we may need to review this at the Resource Planning and Demand meeting.”[29]Ms Simpson repeated that advice later to Mr Martin in an email of 21 December 2023, (at pages 151 and 152).[30]Mr Martin was not happy with what he saw as a change in HR’s position. Nonetheless, Mr Martin accepted the advice that he was given, that what he proposed was not straightforward and required more thought. Rather than pressing on with the change, he set about preparing an Equality Impact Assessment, (EIA) as he was advised to do. He started it on 30 January 2024 and finished it on 4 March 2024. He worked on it through February and added to it from time to time, after research and discussions that he held. The final version incorporating some spelling and grammar corrections on 6 March 2024 and the retrospective note of his conversation with Mr Hudson in October 2023, is at page 317.[31]Mr Martin summarises therein nine meetings and discussions with various people, including: HR, Mr Hudson, other Commanders, the Kestrel South Team and the Senior Management Team. He lists sources of information which included, (page 321): community surveys from Ipswich; the Operational Model for 2025: the Chief Constables Delivery Plan; the Stop Search Policy; the Baroness Casey Review 2025; discussions with the Police Federation; and a paper known as ‘Do Female Officers Improve Law Enforcement Quality?’. Other information that he took into account included, (page 322) the ‘Changes to the Local Policing Model in December 2023’, which he said reduced the size and capacity of the Safer Neighbourhood Teams. He wrote the priority for Southern Command remained violence against women and girls, night time economy vulnerability, gangs / youth violence and county lines, national concerns regarding violence against women and girls and an increase in serious youth violence. He referred to the number in demand in county lines in the Southern Area being consistently high and that the response of the Kestrel Team in the South Area is skewed to the vulnerability to a greater extent than the other areas and therefore, the associated requirements for operational female officers both in terms of legislation / policy (searching) and operational practice (disclosure / victim confidence etc.). He referred to societal concerns remaining high on a national level with regards to misogyny, violence against women and girls, stop searches of children and strip searches. He wrote there remained an overriding sentiment of a representative Police Force that can meet the diverse needs of communities, victims of offenders particularly regarding sex and ethnicity. He referred to a particular criticism identified regarding the limitations of single sex teams to deliver an effective and efficient service and documents that have potential negative impacts on police culture.[32]Mr Martin goes on to consider the impact under each of the protected characteristics. The one that is relevant to us is the assessed impact in relation to sex. He wrote, (at page 327): “The rationale for recruiting two females into the team is detailed above. The impact of this proposed action is two males would be posted out of the Kestrel Team. The current representation of male and female officers is 65.1% / 34.9% across the organisation as referenced in the EDI strategy.”[33]Mr Martin wrote that the availability of female officers on the Kestrel Team would ensure the Team operated efficiently and independently of other core functions. It would reduce the impact and reliance on other areas of operational delivery and increase the protection under the European Convention of Human Rights for individuals that they search, reduced time scales to undertake operational activities, improve engagement with female victims, offenders and communities, it would increase representation in community confidence, increase representation and better meet the role profile in terms of reference and review findings for the team.[34]The negative impact, he acknowledged, would be the direct impact on the two male officers who would be removed from the team.[35]In relation to impact on the community, Mr Martin wrote of: 35.1. Ipswich’s high level of cultural diversity and the specific priorities we have already mentioned of VAWG; 35.2. The increased vulnerability in that area to sexual assault and robbery with female victims and a high number of street drinkers, rough sleepers and drug users who are female, including female victims of domestic abuse who may prefer engagement with an officer of the same sex; 35.3. Community surveys of the town demonstrated concerns regarding female safety of lone females in the town; He therefore identifies a necessity to ensure the availability of female officers to support the aims of the Kestrel Team. The positive being a more efficient delivery of the police service. No negatives were identified, (in relation to the community).[36]Before moving on from the EIA I comment, I accept this is all entirely genuine and that this is what lies behind Mr Martin’s decision making.[37]Mr Martin met with Human Resources on 4 March 2024. The decision was made to move two men from the Kestrel South Team and that those two men would be the Claimants. They were told about that later that day, at the end of the team’s shift. The purpose was to make way for two female PCs to be transferred in, as happened in due course.[38]Both raised grievances about their enforced transfer and the way that it was imposed. Neither grievance was upheld and neither of them appealed the outcome.
The Law
[39]The relevant law is set out in the Equality Act 2010, (EqA 2010).[40]Section 39(2) proscribes an employer from discriminating against an employee as follows: (2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;(c) by dismissing B;(d) by subjecting B to any other detriment.[41]Sex is one of a number of protected characteristics identified at s.4.[42]A police constable is to be treated as employed for the purposes of the EqA, (section 42(1)).[43]The Claimants say that they were directly discriminated against because of their sex. Direct discrimination is defined at s.13(1): “A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic (A) treats (B) less favourably than (A) treats or would treat others”.[44]In this case, the Respondent accepts that the Claimants were treated in the manner complained of, (being removed from the Kestrel South team) because of their sex. The issue is, firstly, whether that amounted to less favourable treatment?[45]Section 23 provides that in making comparisons under section 13, there must be no material difference between the circumstances of the Claimant and the comparator. The comparator may be an actual person identified as being in the same circumstances as the Claimants, but not having their protected characteristic, or it may be a hypothetical comparator, constructed by the Tribunal for the purpose of the comparison exercise. The Claimants here must show that they have been treated less favourably either a real comparator or than the hypothetical comparator would have been treated.[46]It is not in dispute that the compulsory transfer of the Claimants out of Kestrel Team South amounted to a detriment.[47]If I find that the Claimants were treated less favourably than a women would have been because they are men, the Respondent will say that doing so amounted to a proportionate means of achieving a legitimate aim.[48]Paragraph 1 to Schedule 9 of the EqA 2010 reads as follows:(1) A person (A) does not contravene a provision mentioned in subparagraph (2) by applying in relation to work a requirement to have a particular protected characteristic, if A shows that, having regard to the nature or context of the work— (a) it is an occupational requirement, (b) the application of the requirement is a proportionate means of achieving a legitimate aim, and (c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).(2) The provisions are— (a) section 39… (2)(b) or (c); … (4) In the case of a requirement to be of a particular sex, subparagraph (1) has effect as if in paragraph (c), the words from “(or” to the end were omitted.[49]Paragraph 6, (interpretation) reads:(1) This paragraph applies for the purposes of this Part of this Schedule.(2) A reference to contravening a provision of this Act is a reference to contravening that provision by virtue of section 13. … (5) A reference to section 39(2)(b)… is to be read as a reference to that provision with the omission of the words “or for receiving any other benefit, facility or service. (6) A reference to section 39(2)(c), 44(2)(c), 45(2)(c), 49(6)(c), 50(6)(c), 53(2)(a) or 55(2)(c) (dismissal, etc) does not include a reference to that provision so far as relating to sex.”[50]This means that in relation to those already employed, (the situation is different for those applying for employment) the occupational requirement defence is only available in relation to the way the employer affords access, or by not affording access, to opportunities for promotin, transfer or training under s39(2)(b).[51]Section 136 deals with the burden of proof:(1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision. …[52]I should have regard to The Equality and Human Rights Commission code of practice
Conclusions
[53]Mr Dracass submits that the Claimants’ case does not get off the ground because, on the proper construction of the hypothetical comparator, the Claimants were not treated less favourably. He says that the hypothetical comparator is a woman in a team exclusively of women where the need arises operationally, to address that gender imbalance. In those circumstances, says Mr Dracass, two women would have been transferred out of the team; they would have been treated in the same way as were these two Claimants.[54]Mr Stephenson says that is not the correct hypothetical comparator. He refers me to the case of Grieg v Community Industry [1979] ICR 356. In that case, a woman applied for a job to which she was not appointed because it would have meant working with a team of men, which would cause an unacceptable imbalance. The Employment Tribunal found, somewhat surprisingly, (but it was 1979, ditto the reference to “girl” and “g irls” in the quotation below) that was not sex discrimination. In submissions on appeal, it was suggested that the outcome was correct and it was not sex discrimination because if the applicant had been male and the role entailed working with a team of women, the man would have been treated in the same way. The EAT, Mr Justice Slynn, did not agree. He wrote, (page 360 at H and page 361 at A and D), “It seems to us the right approach is to ask whether the person who alleges discrimination was treated less favourably in relation to employment by being refused that particular employment, therefore the relevant employment to consider is not some hypothetical employment with the personnel concern totally different but is the employment for which the applicant applied and if it can be shown that a girl is refused because she is a girl, whereas a man would have been accepted because he was a man, then that amounts to discrimination. … It seems to us on the arguments which we have heard that just as there would be discrimination to refuse a girl in the present case, so equally there would be discrimination to refuse the man who applied to join the team which consists of girls, if he was refused simply because he was a man.” Mr Dracass did not seek to gainsay Mr Stephenson’s reference to that case when I invited him to do so.[55]How to identify a comparator is considered at length by the various Lords of Appeal in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. A Chief Inspector had the task of appraisals removed from her. She compared herself, in complaining of discrimination, to her two colleague Chief Inspectors who continued to undertake appraisals. They were held not to be actual comparators because there was a material difference; she had complaints made against her and the other two had not. That is the background to Shamoon.[56]There is much discussion in the case about comparators. Mr Stephenson refers me to the Judgment of Lord Scott, I think he intended to refer to paragraph 110, certainly that is the paragraph the learned editors of Harvey refer to. Lord Scott wrote in summary, “The comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim, save only that he or she is not a member of the protected class.”[57]There is no actual comparator in this case, so I have to construct a hypothetical comparator. Attractive though it is at first blush, I do not think that Mr Dracass’ comparator, of a woman or two women, in a highly improbable all women team operating in circumstances where there is an operational imperative of similar degree, to replace two women with two men, is the appropriate comparator. If that were to happen, there would have been discrimination against the two women transferred out, as Slynn J has said in Grieg. I am bound by Grieg. The formulation of the appropriate hypothetical comparator in this case is in my judgement, a female PC on the Kestrel South Team with the same tenure as, in Mr Ford’s case, as Mr Ford and in Mr Woodward’s case, as Mr Woodward.[58]The treatment of non-identical comparators in similar situations can assist in constructing the hypothetical comparators. See for example the case of Chief Constable of West Yorkshire v Vento (No. 1) (EAT/52/00) (8 June 2000) at [7].[59]Mr Martin acknowledged, as he had to, that if the former female member of the Team had still been on the team, she would not have been selected for transfer; of course not. The purpose of the transfer was to increase the number of women on the team. Mr Ford and Mr Woodward would have been selected. They would have been treated less favourably than that female Police Officer and the reason for that difference in treatment was that they were men. That is direct discrimination on the grounds of sex.[60]The question now arises, we have direct sex discrimination, can the Respondent avail itself of the occupational requirement defence? The first step in the analysis is to consider, is it an occupational requirement at all to be female? The wording of Schedule 9 paragraph 1 refers to an occupational requirement applying in relation to “work” and “having regard to the nature or context of the work”.[61]The ECHR Code of Practice, at 13.7, says that the requirement must not be a sham or a pretext and there must be a link between the requirement and the job.[62]The explanatory note to the Equality Act 2010 says that the occupational requirement must be “crucial” to the post.[63]I note in EU Law on the equivalent provision in the EU Directives which gave rise to the Equality Act, preserved by the European Union (withdrawal) Act 2018, in JNP v AP Assistenzprofis GMBH [2024] IRLR 332, it was said, “The characteristic, here sex, must be “essential” to the performance of the various tasks of the job.”[64]Paragraph 13.1 of the Code of Practice suggests that any exception to the prohibition on discrimination should be interpreted restrictively.[65]The “work” here is the work of a Constable in the context of the Kestrel South Team. Not the broader work of a Constable with the Suffolk Constabulary. The need for a woman on the Kestrel South Team was genuine. The difficulty is, it is not a requirement that Constables on the Kestrel South Team should be women, it is that some of them should be women.[66]Mr Martin acknowledged that when one analysed the duties of a PC on the Kestrel South Team, they could all be undertaken by men. Women who have to be strip searched can be taken to the Custody Suite where female officers would be available. Also that any intrusive search of women beyond their outer clothing can be undertaken by male officers if it is urgent and pressing that they do so, it is just not best practice to do so. It is not an occupational requirement that to be a Constable on the Kestrel South Team, that one must be a woman. It is just that the Respondent needed two women on that team and that is not the same.[67]In short, I find that the Respondent cannot avail themself of the occupational requirement defence because it is not an occupational requirement.[68]Had I decided otherwise, the Respondent would still have been in difficulty. Inflicting detriment as an act of discrimination is excluded from the scope of the occupational requirement defence. It is not brought within scope by paragraph (1)(a). The Claimants’ case is that they were subjected to detriment. Mr Dracass argues that this does not matter, the facts of the case are within 39(2)(b), affording access or not affording access to opportunities for promotion or transfer and therefore, the Respondent can avail themself of this defence. The Respondent says that the circumstances in Section 39(2)(b) are a detriment, as indeed are less favourable terms of employment under subparagraph (a), or dismissal under subparagraph (c). Mr Dracass points out that subparagraph (d) actually refers to any, “other” detriment.[69]However, Mr Dracass seems to me to be trying to stretch the language of 39(2)(b) too far in suggesting that it applies to the circumstances in this case.[70]“Opportunity” signifies choice and something positive. In the Oxford English Dictionary, it is defined as a favourable time or set of circumstances for doing something. There is no choice here, there is nothing favourable. The transfer was imposed on the Claimants, it was not something positive to them; it was not an opportunity to them. It was not about giving them or not giving them an opportunity to transfer or for promotion. Section 39(2)(b) does not apply in these circumstances.[71]Putting in for a transfer and not getting it, is being denied access to an opportunity for transfer; s.39(2)(b). Having a transfer imposed is not that. It is another detriment.[72]There is a nuance to this in relation to Mr Woodward. He occasionally acted up as Sergeant if the team Sergeant was absent. As I understand it, after the first 80 hours a year of doing so, he received enhanced pay. In the new role he moved to, he was permanently acting up as Sergeant and therefore received a permanent enhanced rate of pay. That might be seen as promotion but it was not what Mr Woodward wanted. It was not what he sought. He wanted to stay on the Kestrel South Team because the fixed hours on that team were compatible with his caring responsibilities for his child, from whose mother he was estranged. It was not, to Mr Woodward, an opportunity for promotion.[73]Finally, let me say, if this case had been in the scope of the occupational requirement defence, I absolutely would have found, applying the principles set out in City of Oxford Bus Services Limited (t/a Oxford Bus Company v Harvey EAT 0171/18, that the means adopted to achieve what was undoubtedly a legitimate aim, were proportionate for the reasons set out in paragraph 33 to the written closing submissions of Mr Dracass. Mr Martin’s aims were laudable.[74]I will also say that most of the criticisms that have been made of Mr Martin and Human Resources are not justified. As will have been evident to those sitting in this case, in this room, the law here is complicated and there is a dearth of appeal court guidance. The state of the law in situations like this is in my view, that the gender balance of the Team can be addressed in recruitment and positive action, but not by transferring people out of the team and replacing them with the opposite sex. It is not straight forward and I think one should hesitate before criticising people for not fully grasping the problem.[75]For these reasons, the Claimants’ claims succeed.
REMEDY
[76]Having given Judgment on liability we proceeded this afternoon to hold a Hearing as to Remedy. Mr Ford and Mr Woodward came back to the witness table to give further evidence and to answer further questions in cross examination.[77]After submissions from Counsel I retired and I was able to give Judgment before finishing for the day.
The Law
[78]Where a claim has succeeded before an Employment Tribunal under the Equality Act 2010, section 124 provides as follows:(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).(2) The tribunal may— (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b) order the respondent to pay compensation to the complainant; (c) make an appropriate recommendation.(3) An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect [on the complainant] of any matter to which the proceedings relate— (a) . . . (b) . . ..[79]With regard to recommendations, they may only relate to obviating an adverse effect on the Claimant.[80]Section 119(1) sets out what a County Court may order, which is to grant any remedy which could be granted in the High Court in proceedings for tort or judicial review, which includes compensation for financial loss and personal injury. Such compensation can include damages for injury to feelings, (s119 (4)). Those damages would be payable by reason of a statutory tort on the part of the Respondent, the measure of damages in respect of which is to place the Claimant, so far as is possible, in the position that he would have been in but for the discrimination, (see Ministry of Defence v Channock [1994] IRLR 509 EAT).[81]Damages are assessed under two headings; General Damages for pain, suffering, loss of amenity or injury to feelings and Special Damages in respect of the financial losses flowing directly from the discrimination.[82]In the case of(1) Armitage,(2) Marsden and(3) HM Prison Service v Johnson [1997] IRLR 162 the EAT set out five principles to consider when assessing awards for injury to feelings in cases of discrimination: 82.1. Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor’s conduct should not be allowed to inflate the award. 82.2. Awards should not be too low as that would diminish respect for the policy of the legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches. 82.3. Awards should bear some broad general similarity to the range of awards in personal injury cases. This should be done by reference to the whole range of such awards, rather than to any particular type of award. 82.4. In exercising discretion in assessing a sum, Tribunals should remind themselves of the value in everyday life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings. 82.5. Tribunals should bear in mind the need for public respect for the level of awards made.[83]Further guidance was given on the range of awards by setting out three bands of compensation for injury to feelings by the Court of Appeal in the case of Vento v Chief Constable of West Yorkshire Police (2) [2003] IRLR 102. Those bands were as follows: 83.1. The top band is for the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. 83.2. The middle band should be used for serious cases, which do not merit an award in the highest band. 83.3. Awards in the lower band are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence.[84]The thresholds of the bands are amended to reflect inflation each year, by Practice Direction issues each year by the Presidents of the Employment Tribunals for England and Wales and for Scotland. They apply in respect of proceedings issued on or after 6 April in the year in question. For the year commencing 6 April 2024 the band thresholds are:• lower band (less serious cases): £1,200 to £11,700• middle band: £11,700 to £35,200• upper band (the most serious cases): £35,200 to £58,700[85]The problem with the Vento Bands is what we are doing is compensating injury to feelings, not compensating how bad any particular act of discrimination was. Of course how serious the discrimination was will have some effect on how a person’s feelings are injured, put simply some people are more sensitive than others and some things will affect people in different ways to others, it is really about the injury to feelings more simply how serious the discrimination was, see Sadia Shakil v Samsons Ltd [2024] EAT 192.[86]Tribunals now have the power to uplift or reduce any award by up to 25% where a party has unreasonably failed to comply with an ACAS Code of Practice. This is provided for in the Trade Union and Labour Relations (Consolidation) Act 1992 at section 207A. It is a provision that applies to employers and employees. However, section 180 provides that Police Officers, for the purposes of this Act, are not employees.[87]The Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 provide that interest is payable on awards of compensation in cases of discrimination. It is to be awarded regardless of whether an application is made. The rate of interest payable is 8% for proceedings issued after 28 July 2013. Interest should be calculated from the ‘day of calculation’ which in a case of injury to feelings, is the period beginning on the date of the contravention or act of discrimination complained of, through to the date of calculation. Application for Recommendation[88]It is fair to say Mr Dracass was caught somewhat off guard, not realising that it was Mr Stephenson’s intention to make an application for a recommendation.[89]The recommendations sought were that the Claimants be provided with an apology and that that certain people have training.[90]Mr Stephenson referred me to the case of Wisbey v The Commissioner of the City of London Police [2021] IRLR 691 but looking at it, I did not really find it helpful. It is a case of indirect discrimination where the recommendation considerations are slightly different.[91]No matter, whether to make a recommendation or not is something that is in my discretion. I do not think it is appropriate or necessary flowing from this case, to order anybody to have any training. The legal points are tricky and now they have the Judgment, the Respondent understands the position. I do not think there is anything to be gained for the Respondent nor the Claimants, by ordering any individual to undergo any further training.[92]In terms of apologies, I am not prepared to exercise my discretion and order Mr Martin to give an apology. I think Mr Martin thought that he was doing the right thing and he was acting on advice. I am prepared to and do, recommend that the Respondent give an apology to the Claimants for transferring them from their assigned team for the sole purpose of replacing them with female Police Officers, which is discrimination. It will assist the Claimant’s in their work in the future in being able to put this behind them. Compensation[93]I deal now with the compensation elements of Remedy. Mr Ford[94]In answering some supplemental questions, which I allowed on the basis they were bringing up to date Mr Ford’s evidence on Remedy, we learnt that from the Kestrel Team, Mr Ford went to the Child Exploitation Team and in doing that, did not lose his unsocial hours payments that he had received while on Kestrel Team. However, since last October, (2025) he has moved to another team, we do not need to say what the team is, but he has lost his unsocial hours payments in that move. He seeks reimbursement of the lost unsocial hours payments, which he says are as a consequence of the discrimination. There is nothing about this in his witness statement, prepared since October. There is no evidence about it that I have been taken to in the Bundle and there are no calculations. In any event, in my view, his choice to move to this next team is a choice that he has made. It is what we would call an intervening act, it is not as a consequence of the discrimination, but as a consequence of a decision he has subsequently made. I make no award in that respect.[95]In terms of injury to feelings, first of all I will summarise some highlighted points from Mr Ford’s witness statement on injury to feelings. He writes of the profound and lasting impact. He believed that his position on the Kestrel Team was secure. His move, when he learnt of it, put him in a state of shock and bewilderment. He wrote about cycling to and from work, a thirty minute journey and that for three months after the event, it dominated his thoughts daily. He referred to becoming distant from his wife and children. He stopped visiting his parents. He felt depressed and he felt negative.[96]In cross examination, Mr Ford confirmed that he had not had any time off from work with stress related issues. He had been signposted to the Employee Assistance Program and the availability of counselling, which he had not taken up. He spoke of being proud that in his career, he had only had two weeks off through ill health. He said in response to one question from Mr Dracass, “You will never understand how this has affected me. I will never forget it until the day I die.” Mr Woodward[97]For Mr Woodward, again I will pick up some highlighting points from his witness statement. He wrote of being shocked and saddened. He spoke about having to leave a team that he loved; this being a common theme to both him and Mr Ford. He very much loved working on the Kestrel Team. He felt devastated and had feelings of sadness, which quickly turned to anger and anxiety. There were practical problems which this change caused for him in his childcare arrangements, which I referred to in the Liability Judgment. He wrote of this process being constantly on his mind and he still feels strongly that he and his colleague have not been treated properly. He is frustrated by what he sees as hypocrisy of the Respondent, which is constantly making reference to the importance of, in laymen’s terms, equality and diversity and yet here they are, not following those principles themselves. He said the whole experience had left him stressed, angry, deeply disappointed and it has affected his work, his personal life and his mental health. He feels undervalued, like a number on a spreadsheet.[98]In cross examination, Mr Woodward had similarly to Mr Ford, confirmed he had not taken any sick leave. He said he was not going to let the Job win. He had not sought access to the Employee Assistance Program or Counselling, which had been signposted to him. He did say he had sought support from the Police Federation. He acknowledged that as a consequence of the move, he had been able to obtain a substantive Sergeant role and has subsequently achieved substantive promotion. He acknowledged that financially he was better off, although he spoke of the not to be underestimated issues encountered with childcare and having to change court arranged patterns for seeing his child.[99]Both Claimants agreed that being transferred from place to place is part and parcel of being a Police Officer and working in the Police Force. Both speak of loving working on the Kestrel Team. Awards Sought[100]In submissions, Mr Stephenson agreed that any award I make ought to be the same for both Mr Ford and Mr Woodward. He pitches this award at the lower of the mid Vento Band, which for a claim issued after April 2024, as here, would be £11,700 to £35,200.[101]Mr Dracass says that the injury to feelings award should be in the lower end of the lower Vento Band which is £1,200 to £11,700.
Conclusion
[102]One could not call what happened here not serious. On the other hand, it is not overt racism or sexism, deliberately treating somebody badly because of a protected characteristic, in a vindictive way. In that sense, one could not call it serious either.[103]More useful in trying to weigh up where one should fall with an award of injury to feelings, is to think about the guidance in the case of Armitage and also the level of awards that are made in personal injury cases, having regard to the Judicial Study Board Guideline on personal injury cases.[104]What it all boils down to, which I am sure will be no surprise to anybody, is somewhere in between the positions of the two Representatives. I consider that this case falls somewhere in the upper reaches of the lower Vento band and assess the injury to feelings here at £10,000.[105]The Claimants are entitled to 8% interest from 4 March 2024; that is £800 a year, or £2.19 per day. Therefore, from 4 March 2024 to 3 March 2025 is an extra £800 and from 4 March 2025 to today is 312 days at £2.19 a day, that is £683.28.[106]The total of those three figures, £10,000 + £800 + £683.28 = £11,483.28.[107]The Respondent suggests the award should be reduced because the Claimants did not appeal the outcome of their grievance. I am grateful to Mr Stephenson for his assistance, the Trade Union and Labour Relations (Consolidation) Act 1992 does not apply to Police Officers.[108]The time in which the apology is to be given is 21 days. Approved by: