PC S Jones and PC G Tunnock v The Chief Constable of the Police Service of Scotland: 8001891/2024 and 8001892/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001891/2024, 8001892/2024
Between
PC S JonesClaimantThe Chief Constable of the Police ServiceRespondent
Before
Employment Judge A JonesDate 30 July 2025
JUDGMENT
It is the unanimous judgment of the Tribunal that:[1]The claimants were directly discriminated against because of their sex by the respondent by permanently withdrawing their firearms authorisation and by insisting on their transfer from the Operational Services Division.[2]The claimants were not harassed for reasons related to their sex by the respondent.[3]The claimants were not victimised for having done a protected act.[4]The respondents are ordered to pay to i. PC Jones compensation of £24,800.59 (net) being compensation for loss of income of £2,646.59, injury to feelings of £20,000 and interest thereon of £2,154, and to ii. PC Tunnock compensation of £23,824.56 (net) being compensation for loss of income of £1,670.56, injury to feelings of £20,000 and interest thereon of £2,154. Introduction[1]The claimants both lodged claims on 14 November 2024. As the claims arise out of the same set of circumstances, the claims were combined and heard together. Following a preliminary hearing for the purposes of case management, the claimants were directed to set out their claims in a Scott Schedule. The respondent was then given the opportunity to adjust their grounds of resistance in response.[2]The claimants were both authorised as Firearms Officers by the respondent until the permanent withdrawal of that authorisation. The claimants are both Police Constables and remain in the service of the respondent, but have been transferred out of the division in which they previously served, Operational Services Division (‘OSD’).[3]The claimants’ claims were that they had been directly discriminated against and harassed in relation to the protected characteristic of sex. They also complained of victimisation for having done the protected act of lodging a grievance in which they complained that they had been discriminated against. The respondent denied all claims. It was accepted that the claimants had done a protected act.[4]A joint bundle of documents was produced at the hearing. The claimants gave evidence on their own account. PC Jones gave evidence first (and PC Tunnock was not in the hearing during his evidence). The Tribunal then heard from retired Assistant Chief Constable Gary Ritchie (‘GR’) before hearing from PC Tunnock. GR gave evidence remotely from Australia as he has retired there and was only able to give evidence on a particular day. All other witnesses gave evidence in person. In addition to GR, the respondent led evidence from Inspector Andrew Miller (‘AM’) who had been the claimants’ second line manager, Deputy Chief Constable Bex Smith (‘BS’) who had dealt with the claimants’ grievance and Deputy Chief Constable Alan Spiers (‘AS’) who dealt with the claimants’ appeal against BS’ decision in addition to a separate grievance from the claimants in relation to BS.[5]Both parties provided written submissions which were exchanged in advance of a continued hearing on 10 July at which parties were given an opportunity to comment on the others’ submissions. Issues to determine[6]The issues for the Tribunal to determine can be summarised as follows: i. Did the following acts amount to direct discrimination because of sex in terms of section 13 Equality Act 2010 (‘EqA’) a) The decision on 6 March 2024, by GR to permanently withdraw the claimants’ firearms authorisations. b) The insistence by GR on or around 2 October 2024 that the claimants be transferred out of OSD. c) The direction of GR on 8 March 2024 that Sergeant Waugh (the claimants’ direct line manager) and AM meet with/correspond with the claimants and communicate that a decision was being made to permanently withdraw their firearms authorisation and that they would not be able to continue to work in OSD. d) The decision of BS on 2 October 2024 not to uphold the claimants’ grievance. ii. Were the claimants subjected to unwanted conduct related to sex in terms of section 26 EqA in relation to: a) Being summoned to a meeting with AM on 4 March 2024 and openly chastised including reference to police misogyny and the perception that the claimants’ interactions may negatively impact the respondent. b) The failure of GR to follow the suspended authority process on 8 March 2024 (of which the claimants first became aware on 24 June 2024) c) GR’s decision on 6 March 2024 to permanently withdraw the claimants’ firearms authority. d) GR’s decision on 2 October 2024 to refuse to accept the findings and recommendations of the grievance outcome which suggested that the claimants should remain in OSD. e) The statements made by BS that she ‘agreed’ with GR’s rationale for permanent withdrawal of firearms authorisation. iii. Were the claimants subjected to the following detriment in terms of section 27 EqA for having done a protected act (it being accepted that the claimants’ grievances were protected acts and noted that the claimants withdrew allegations in relation to other detriments); the joining of the second grievance to the grievance appeal and having this heard by AS collectively. Observations on the evidence[7]The Tribunal found both claimants to be credible and reliable witnesses. They gave their evidence in a straightforward manner and made concessions where it was appropriate to do so. It was clear that both claimants had been significantly impacted by the circumstances surrounding these cases. Both officers came across as genuine, credible and reliable and PC Tunnock answered questions in a particularly straightforward manner.[8]The Tribunal did not find aspects of the evidence of GR to be satisfactory. While it was appreciated that he was giving evidence remotely, which caused a time delay and was doing so at a very late hour in his time, the Tribunal did not find some of his evidence to be either credible or reliable. Rather the Tribunal was of the view that GR had over time sought to develop the reasons for the action taken by him in light of the complaints which were put forward by the claimants. His evidence came across more as dogmatic, than direct at times and he was uncomfortable at his evidence being challenged. He did not make any concessions even where the documentary evidence contradicted his position, and gave contradictory evidence. For instance, he initially stated that he had read all (500) comments on the TikTok video, and then changed his evidence to suggest he would have scanned them or read some of them. He said he didn’t put much weight on comments made on social media, but then referred to the importance of the negative manner in which the claimants’ actions had been received by the public (which was not in fact an accurate description of all comments which were before the Tribunal) and criticised the claimants for not having anticipated this. His evidence suggested that he was keen to take decisive action in relation to the withdrawal of the claimants’ authorisation, rather than take time to ensure that he took the correct decision or have regard to procedure in relation to the taking of that decision.[9]The Tribunal was particularly surprised that no notes were taken of the meeting at which the decision to withdraw the claimants’ authorisation was taken and that while GR said he recorded his rationale in his daybook, this had not been produced. GR’s evidence about his failure to follow the procedure set down in relation to permanent withdrawal was of concern to the Tribunal. He said it was not a difficult decision to take, yet he had not looked at the relevant procedures before he took the decision, had never made a decision of this nature before and emphasised that he wished to show expediency in his decision making. That evidence was contradicted by his written evidence when he set out the reasoning for his decision to BS in the context of the claimants’ grievances, when he said it was a difficult decision to take. While GR appeared to suggest that time was of the essence in taking a decision so that the officers could be replaced, in fact no steps were taken to replace the officers until after the outcome of their grievance some 7 months later.[10]The Tribunal found AM to be a credible and reliable witness who answered questions directly and fully. He was careful to indicate when he did not fully recall facts and took every effort to give his evidence in a balanced manner. The Tribunal appreciated that AM was in a difficult position given that he expressed the view that the decision taken by GR was not proportionate but he gave his evidence in a balanced manner.[11]BS and AS were also both straightforward witnesses who gave their evidence in a direct manner.[12]It is notable that the Tribunal did not have sight of the Scottish Sun article which was printed in relation to these matters. It was not produced by the respondent. In addition, only what appeared to be a selection of the comments left below the video on Ms Storm’s TikTok account were produced. On enquiry by the Tribunal, it transpired that a member of staff of the respondent’s agents had been responsible for printing comments and the Tribunal did not hear any evidence as to how the selection regarding what comments would be produced had been made.[13]The Tribunal was also surprised at the lack of clarity of the evidence of the respondents in general, both oral and documentary in relation to what happened, when and who was involved. For instance, the claimants were initially told that ACC Bond had made the decision to permanently withdraw their authorisation. They were later told it was GR. There was a lack of a paper trail in relation to the process. In addition, although an investigation was carried out into the claimants’ concerns on behalf of BS, no report in relation to that investigation was produced. There were some written statements produced which may have been taken during the investigation (the evidence was not clear on that point) and there was a document called “Timeline – PC Steven Jones” which had some information regarding what had happened, although it was not consistent with some of the evidence. The Tribunal was not informed who had drafted that document or for what purpose. Findings in fact[14]Having listened to the evidence, considered the documents to which reference was made and the submissions of the parties, the Tribunal found the following material facts to have been established.[15]In order to obtain firearms authorisation, candidates are required to go through a highly competitive process. This requires being supported by their managers, going through an assessment day and fitness testing. They are then required to undergo intensive training over an 11-week period during which they can be deemed as unsuitable and removed from the training program. The failure rate at that training course is 50%. The training includes testing the responses and reactions of officers in different scenarios. No training is given on interacting with the public while on duty carrying firearms.[16]Prior to the commencement of duty as an armed firearms officer (‘AFO’) they have to confirm that they are fit for duty prior to commencing each shift. Their performance is assessed on an annual basis.[17]Firearms officers are based within the OSD of the respondent’s operations, which also includes traffic police, mounted police, dog handlers and other specialist services.[18]The claimants were based at Fettes in Edinburgh and were both highly regarded by their line managers. PC Jones had completed his firearms training on 16 June 2023 and PC Tunnock had completed his training on 8 October 2021. PC Tunnock had recently been put forward for promotion to Acting Sergeant by AM. Both officers had won awards and commendations during their service and had no disciplinary records.[19]The respondent posts pictures of officers with members of the public on its social media accounts such as X or Instagram. It encourages officers to provide pictures which demonstrate positive public and community engagement.[20]The respondent posted a picture of the then Chief Constable with members of the public and firearms officers at the Edinburgh Marathon in 2017 with a hashtag #ArmedPolicing on X.[21]On 20 January 2020 the respondent posted on its intranet a call for officers and staff to send any policing images they had captured. The notice stated that if the photo was featured on the respondent’s social media channels, the officer or staff would be sent a Police Scotland Instagram pin badge.[22]Armed officers regularly have their picture taken with members of the public, particularly when they are on patrol at the airport and outside the Scottish Parliament building.[23]On 1 March 2024, both claimants were working together as AFOs on patrol at the Scottish Parliament and its environs. This required them to drive round the patrol matrix, to observe and report on any activity and at times patrol on foot in front of the Scottish Parliament. It is intended that they provide a visible presence to the public.[24]The claimants had a locked armoury in the boot of the car in which they were patrolling and both officers were also carrying a Glock firearm and taser on their person, all of which was normal procedure.[25]On 1 March 2024 the claimants were both working a backshift, which is from 13.00 to 22.00. They take breaks when operationally convenient and if they are required to go to a shop to buy food or drinks would do so visibly armed. Officers should attempt to keep their vehicle in view at all times for security purposes.[26]The claimants received a call asking for assistance in stopping a suspicious vehicle as they were in a marked car and were near to the locus. They obtained authorisation to do so but en route discovered that another marked car had arrived before them and they were not needed. At that stage the claimants continued driving towards the Parliament building, along the Cowgate area.[27]The claimants saw a gathering of individuals on the other side of the street from their car and slowed down to determine what was happening.[28]PC Jones was driving the vehicle and as they slowed down, PC Tunnock recognised a radio presenter, called Tallia Storm on the same side of the pavement as his passenger seat. PC Tunnock engaged Ms Storm in conversation through the window of the car in order to determine if she knew what was causing the crowd of people. Ms Storm said that she was on her way to conduct a Q & A with a popular musician and the crowd were on their way to take part in that. PC Tunnock asked if they could have a photograph with Ms Storm. Both claimants got out of the vehicle and PC Jones took a photograph of PC Tunnock and Ms Storm. One of Ms Storm’s companions videoed the interaction.[29]During the interaction the claimants’ police vehicle was stopped on double yellow lines. One vehicle had to stop briefly behind the police car and another overtook it while the police vehicle was stationary. The road was not busy with traffic at the time.[30]It had been the intention of the claimants to provide the photograph to the respondent’s communications department as an example of them engaging positively with the public. The photograph was not posted to any social media account by either claimant.[31]After the interaction, which took around a minute the claimants got back into their vehicle and continued their duties.[32]The video of the interaction was posted on Ms Storm’s TikTok account on 2 March 2024. Around 500 comments were posted below the video. While some of the comments were negative, some were positive.[33]Both claimants became aware of the video which had been posted on 2 March 2024.[34]The video was sent to AM on the evening of 3 March 2024.[35]On the evening of 3 March 2024 both claimants were advised by their line manager Sergeant Waugh to report to Fettes the following morning (where the firearms unit was based) and that AM wanted to speak to them.[36]AM spoke to each claimant individually. He said to PS Tunnock that he was very disappointed in him. AM had recently supported PS Tunnock for temporary promotion to Sergeant. AM expressed the view to both claimants that the matter was likely to be viewed negatively by senior management and that because of the history of the department he was concerned that this incident could be viewed as misogyny by senior management. AM expressed this view to the claimants on the basis that while he was satisfied that the issues in relation to the issues in the department had been addressed, he did not believe that the Senior Management Team shared that view.[37]AM informed both officers that their firearms authorisation would be temporarily suspended pending review by the Professional Services Department.[38]AM then completed a report on the matter. Reference was made in that report to there being a “Risk of reputational damage and confidence in Armed Policing Officers based within Fettes.” Under a heading Community Impact the report stated “Perception of Armed Police officers within Police Scotland. Damage to the good work carried out to address previous areas of improvement following high profile cases in the past, specifically at ARVS, Fettes.” AM was referring to an Employment Tribunal case which found that a female firearms officer had been subjected to discriminatory conduct on the basis of sex in the Fettes unit some years before and had been awarded over £1 million in compensation.[39]Following the outcome of that case, the respondent had required officers in the unit to undertake equalities training on a regular basis.[40]The respondent’s former Chief Constable Iain Livingstone stated publicly that the respondent was institutionally sexist.[41]An article was published online on the Scottish Sun on 5 March 2024 regarding the matter. A link to that article was sent to the claimants by friends or colleagues.[42]A link to the Scottish Sun article and the TikTok video had been sent to GR on the morning of 6 March by Superintendent Boyd who was responsible for the People function within the respondent. GR read the article, viewed the video and looked at a few of the comments below the video.[43]GR arranged a meeting with Superintendent Boyd, Chief Superintendent Paterson, who was the Divisional Commander and Superintendent l’Anson who was the Superintendent within OSD, Firearms for the afternoon of 6 March 2024 to discuss the issue. No minutes were taken of that meeting. While Superintendent Boyd and Chief Superintendent Paterson were present with GR, Superintendent l’Anson joined remotely. At the meeting, GR stated that he wanted to take a firm stand and that there was no place in armed policing for ‘this’ type of behaviour. He stated that the claimants would be permanently withdrawn from armed policing and transferred out of OSD. During the meeting GR expressed concern at the ‘optics’ of the TikTok video and article in particular in the context of the efforts which had been made to change the culture of armed policing from that of a boys’ club and issues of female representation in the unit.[44]GR had formed the view at that meeting that the claimants had acted in a manner which could be perceived as sexist by having a picture taken with a female celebrity. His view was influenced by his perception that the male officers at the armed unit at Fettes still had a ‘boys’ club’ mentality and were institutionally sexist. There was nothing which could reasonably be perceived as sexist or misogynistic in the claimants’ interaction with Ms Storm, who had welcomed and been delighted with the engagement with the claimants.[45]The respondent has a standard operating procedure for armed policing which sets out the process to be followed for permanent withdrawal of officers from armed policing. GR did not read that procedure and did not know what its terms were before he took the decision that the claimants’ authorisation should be permanently withdrawn. GR had never taken a decision to permanently withdraw an officer’s firearms authorisation before.[46]The Standard Operating Procedure states that it “provides clear direction and procedural instruction to provide a consistency of response in accordance with force policy, however it is recognised that policing is a dynamic profession and the standard response may not be appropriate in every circumstance.”[47]No officer had ever had their authorisation permanently withdrawn at the instruction of management prior to GR’s decision. While officers had commenced the process voluntarily, no officer had their authorisation permanently withdrawn against their will.[48]GR did not make any enquiries as to whether the claimants could perform any other roles in OSD. He did not ask for any information in relation to the previous service of the claimants, what roles they had carried out, their disciplinary records or what training they had undergone or ask for any input from their direct line managers about their performance.[49]There was no urgency to make a decision to permanently withdraw the claimants from armed policing as their authorisation had already been suspended pending the outcome of an investigation by Professional Standards department. Their roles would not be backfilled immediately and GR did not take any steps to backfill their roles at that time.[50]On 6 March an article was published in the Edinburgh Evening News regarding the matter, the comments which were posted by readers below the online version of the article were largely positive towards the claimants.[51]GR did not ask for any updates on the media coverage of the matter. He did not liaise with the respondent’s media team at any time, nor ask for their input or advice.[52]At some point in the days after her interactions with the claimants, Ms Storm posted a further comment in relation to the video which had been posted, stating “Posting this as this got a lot of hate in the media so here’s the context: I was hosting the Q&A for Conan Grey in Edinburgh & there was a sea of young girls lining the streets to see Conan, so of course there would be police there! They stopped for less than a minute saying hello, couldn’t have been kinder. It took less time to take a pic that it would have taken for them to get a coffee!! They were lovely. It was so refreshing to see kindness & support in our little community. Be kind, we are all human on the job at the end of the day!!!”[53]On 8 March 2024 the claimants met with Sergeant Waugh and AM at Fettes. They were informed that while there was no report from Professional Standards as yet, a decision had been taken by ACC Emma Bond to permanently withdraw the claimants’ AFO status and they would not be permitted to continue to work in OSD.[54]When the claimants’ colleagues became aware of the permanent withdrawal of the claimants’ authorisation, they threatened to take a ‘period of reflection’ because they did not feel supported by senior management in carrying out their duties. Officers are required to confirm whether they are fit and able to carry a weapon prior to a shift and it was only after intensive and extensive efforts by AM in speaking to officers individually and collectively which persuaded officers to carry out their duties in the normal manner.[55]On 13 March 2024, the Professional Standards Department concluded that both claimants were guilty of discreditable conduct and that improvement action should be taken. The report stated “On balance, while I think the behaviour was unprofessional and amounts to misconduct, it appears this was a momentary lapse in judgment rather than a deliberate intention to ignore required professional standards.” The report went on to state “The ethos of the Police Service of Scotland (Conduct) Regulations 2014 is to identify and learn from shortcomings in order to prevent a repetition of the behaviour rather than to impose a punitive sanction. With that in mind, I am satisfied it is proportionate and reasonable to conclude the matter through the delivery of Improvement Action as outlined above. It is noted that the Subject Officer had his Firearms Authorisation temporarily withdrawn following this incident. It will be for OSD SMT to consider the circumstances and determine whether this Authorisation should be reinstated.” This decision was communicated to the claimants on 15 March 2024.[56]Inspector Bruce Crawford held the role of the FARI officer, which was responsible for reviewing licenses for firearms authorisation. The intention of the FARI officer is to provide an independent “bridge” between management and officers in relation annual renewals and authorisation. He provided a report on the matter on 28 March which set out four options in relation to the claimants including reinstating the officers, doing so with additional training, sustaining temporary suspension to allow the officers to return to work in operational environment for a period in order to demonstrate there would be no repeat of the conduct or to permanently withdraw the officers’ authorisation. The Inspector recommended authorisation should be reinstated after additional EDI (equality diversity and inclusion) and roads policing training. The importance of taking a decision after a transparent investigation, and of following approved procedure was also highlighted by him.[57]AM then drafted a briefing paper “For Decision” on 28 March 2024 regarding the AFO status of the claimants which was passed to his next line manager. He provided a chronology of relevant events and stated “Both officers have accepted invites to meet SMT. Both are remorseful of their actions. There was a genuine belief that their engagement would be seen as positive public engagement. The officers concerned are dedicated proactive officers within armed policing with no history of previous poor decision making which is documented in their annual AFO renewal applications. The service have invested considerable money and time into training these specialist officers. Both have accepted the decision from PSD and subsequent corrective action to be taken on their return. In view of the process, actions and acceptance by both officers it is respectfully requested that clarity be sought on whether a PW is still proportionate and a move out with OSD on their return from absence.” The report also stated under “Operational Implications” “Both officers have been removed from front line duties. Due to specialist role this has caused overtime to be required to backfill gaps created. Feeling amongst other AFOs that the PW being implemented prior to PSD assessment was disproportionate and left officers feeling unsupported by senior management and fear that future public engagements with armed police officers will be impacted.” AM wrote this briefing paper as he was concerned that the person making the decision was doing so without all the material facts. His view was justified. AM was unclear as to who had in fact made the decision. He was initially informed it was ACC Bond but then was informed that it was GR who had made the decision. AM did not receive any acknowledgement or response from anyone to this briefing paper. GR did not read the briefing paper.[58]On 9 April, the claimants were informed by AM that it was GR and not ACC Bond who had made the decision to permanently withdraw the claimants’ authorisation.[59]The claimants submitted a grievance on 12 April in relation to the decision to permanently withdraw their authorisation.[60]On 25 April, the online portal which contained information regarding the claimants and their duties was updated on behalf of GR. A request had been made by the FARI officer for information regarding the decision making involved in withdrawing the claimants’ authorisation. GR provided notes to be recorded on the system as follows: “Consideration is that their conduct in this was completely unacceptable, demonstrating significantly poor judgement and decision making and a lack of situation awareness, both of their physical position at the time as well as the wider context in respect of the current commentary around policing, especially the behaviour of male police officers towards females, both within the Service and the wider public.” Additional information was also requested by GR to link the behaviours of the claimants to the contra-indicators contained within the guidance of the requirements of the role of AFO. That information was provided by another officer who had not made the decision. This content amounted to an ex post facto justification for the decision which had been taken some 6 weeks previously.[61]BS was appointed to deal with the claimants’ grievance. She appointed Detective Chief Superintendent Chow to investigate and report back to her. BS asked GR to provide her with an account of the events in relation to the decision he took to permanently withdraw the claimants’ authorisation and he sent her an email on 3 May stating “I’ve detailed the account below which I hope hits the mark.” In that account he stated that this had been a difficult decision, which was contrary to his evidence before the Tribunal.[62]A meeting did not take place with the claimants to discuss their grievance until 16 May. No explanation was given to the claimants for the delay in progressing the matter. The meeting took place with Detective Chief Superintendent Chow and not BS. BS did not ever meet with the claimants. The respondent’s policy states that a meeting would normally be arranged within 14 days of receipt of a written grievance.[63]The claimants found out that their permanent withdrawal had been confirmed on 24 June when they accessed the online portal. PC Jones was absent on grounds of illness from 3 March until the end of August 2024. From then until the end of October 2024, he carried out menial tasks in the office in Fettes. On one occasion he and PC Tunnock were countermanded from delivering ammunition to another location because they were no longer AFOs. They were humiliated in front of their colleagues by that action and by being required to carry out menial tasks.[64]BS wrote to the claimants by letter dated 30 September 2024 outlining the grievance outcome. The grievance was not upheld in any material respect. BS did however state that consideration should be given to the claimants being redeployed within OSD if there were suitable posts available. BS contacted GR to ask him to explore options for the claimants to remain in OSD.[65]No efforts were made to find suitable posts for the claimants in OSD. The claimants were informed on 25 October that on the order of GR they be required to complete transfer forms that day and that they should not include in those forms any roles in OSD. The claimants’ then Inspector however took the decision that on welfare grounds, the claimants could have the weekend to complete the forms which would have to be submitted on the Monday 28 October. The claimants were both very upset by the pressure this put on them to make decision in such a short space of time. The was no justification provided for the short timescale imposed on the claimants.[66]The claimants submitted an appeal against the outcome of their grievance by letter of 7 October. Separately they submitted a grievance letter to the Chief Constable on 27 October 2024 regarding how their grievance had been handled and on the basis of BS’s decision to agree and support GR’s decision making, which the claimants alleged was an act of sex discrimination.[67]AS was appointed to deal with both issues. A meeting took place on 5 November. AS sent an outcome letter to the claimants on 10 December informing them that their appeal had not been upheld. The letter also sought to address the issues the claimants had raised in their letter to the Chief Constable.[68]PC Jones was then absent from work from 3 March 2024 until the end of August 2024 and then from October 2024 until 17 March 2025.[69]PC Tunnock was absent from work from 3 March 2024 until 24 August 2024.[70]Both claimants suffered significant impact to their mental health from 3 March 2024 as a result of their treatment by the respondent and the impact the commentary on social media had on them. PC Jones had to take medication, and both claimants had to undergo counselling in relation to the matter. PC Tunnock’s behaviour was such that his wife was concerned that he might try to take his own life. PC Jones is considering whether he can continue a career in policing. Relevant Law[71]Section 13(1) EqA provides that a person discriminates against another if because of a protected characteristic, he treats the other less favourably than he treats or would treat others.[72]Section 23 EqA provides that on a comparison of cases for the purposes of section 13, there should be no material difference between the circumstances relating to each case.[73]Section 26 EqA states that: (1)A person(a) (A) harasses another(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (2)A also harasses B if— (a)A engages in unwanted conduct of a sexual nature, and (b)the conduct has the purpose or effect referred to in subsection (1)(b). (3)A also harasses B if— (a)A or another person engages in unwanted conduct of a sexual nature or that is related to gender reassignment or sex, (b)the conduct has the purpose or effect referred to in subsection (1)(b), and (c)because of B's rejection of or submission to the conduct, A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect.[74]Section 27 EqA provides that: (1)A person(a) (A) victimises another person(b) (B) if A subjects B to a detriment because— (a)B does a protected act, or (b)A believes that B has done, or may do, a protected act. (2)Each of the following is a protected act— (a)bringing proceedings under this Act; (b)giving evidence or information in connection with proceedings under this Act; (c)doing any other thing for the purposes of or in connection with this Act; (d)making an allegation (whether or not express) that A or another person has contravened this Act. (3)Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. (4)This section applies only where the person subjected to a detriment is an individual. (5)The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.[75]Section 136 sets out the burden of proof relating to any contraventions of the EqA.[76]In submissions, the Tribunal was referred to the following authorities on behalf of the claimant: Chief Constable of Greater Manchester Police v Bailey [2017] EWCA Civ 425; Shamoon v CC Royal Ulster Constabulary [2003] UKHL11; London Borough of Islington v Ladele (UKEAT/0453/08); Dzedziak v Future Electronics (UKEAT/0270/11); Birmingham City Council v EOC [1989] AC 1155); v JFS 2010 IRLR 136 SC; Commerzbank AG v Rajput [2019] IRLR 772; British Bung Manufacturing v Finn [2023] EAT 165: Chief Constable of Norfolk v Coffey [2020] 2 All ER 490; Amnesty International v Ahmed [2009] IRLR 884; Dunn v Secretary of State for Justice [2019] IRLR 29. In addition to making reference to some of those authorities, the respondent also made reference to Croydon Health Services NHS Trust v George UKEAT/0139/15 and Worcestershire Health and Care NHS Trust v Allen [2024] EAT 40. Discussion and decision The decision of 6 March 2024[77]In the first instance, the Tribunal considered the decision of GR on 6 March 2024 to permanently withdraw the claimants’ firearms authorisation.[78]There was no dispute that the decision amounted to less favourable treatment. The respondent’s position in submissions was that the treatment was not related to sex and that female officers who had acted in the same manner as the claimants would have been treated the same. The position in submissions was not on all fours with the original position which had been adopted in the respondent’s grounds of resistance, which at paragraph 26 stated “It is very difficult for a hypothetical comparator to be identified in this case as female police officers do not operate within the same situational context as male police officers. That is not to say female officers are held to a lower standard of conduct, but two female officers having their photo taken with this tabloid celebrity would not be doing so within the context of widespread commentary and criticism of the treatment of male officers by female officers within the police service of Scotland and in particular the armed policing unit. It is unlikely that the same conduct by two female police officers would have been met with the same public outcry. Therefore, a female comparator would not be in the “same material circumstances” as the claimant. However, more generally speaking if a female AFO had conducted herself in such a way that the PSD considered her conduct warranted Improvement Action, her conduct had attracted widespread criticism in the media and senior management considered that it demonstrated significantly poor judgement and decision making then they would have been treated in the same way as the claimant.”[79]The Tribunal was mindful that in constructing a hypothetical comparator, it was important to not to leave out of account circumstances that are entirely relevant to whether or not a claimant has been less favourably treated because of the protected characteristic (see for instance Governing Body of Sutton Oak Church of England Primary School and ors v Whittaker EAT 0211/18). What the respondent appeared to be suggesting was that a material circumstance was that the unit in which the claimants were employed had been the subject of a successful Tribunal claim by a female officer. The respondent also appeared to suggest that the general commentary around the conduct of male officers towards women was also a relevant matter. Indeed, the claimants were both cross examined about the perception of the public towards male officers following the conviction of Wayne Couzens, a male officer who had raped and murdered a young woman. There was no valid comparison which could be made between the conduct of the claimants and that of a rapist and murderer. It was also put to the claimants that (without documentary evidence to support the line of questioning) when one looked online, it was apparent that Ms Storm was a “good looking female who is often reported in tabloid press in relation to her looks or figure.” It was not clear to the Tribunal why such a line of questioning should be appropriate even were it to have been based on evidence which had been put before the Tribunal. The questioning appeared to suggest that there was something inappropriate in the claimants’ conduct simply because the claimants had a photograph taken with a woman who was good looking. It appeared to the Tribunal that such a suggestion was likely to reinforce stereotypical views of interactions between men and women rather than challenge them.[80]It also appeared to the Tribunal that the respondent was seeking to perform intellectual acrobatics by suggesting that the claimants’ sex was nothing to do with their treatment, but that at the same time their treatment had to be considered in the context of the conduct of other male officers, who had either been guilty of conduct amounting to sex discrimination (in the case involving the claimants’ unit some years before) or, indeed that of a rapist and murderer. The Tribunal concluded that it was not possible to reconcile these positions.[81]In any event, the Tribunal was cognisant of the guidance of the House of Lords in Shamoon (above) that a Tribunal can end up tying themselves in knots by focusing on the creation of an appropriate comparator rather than consider the question of why a claimant was treated in the manner complained of.[82]The Tribunal concluded that the decision of GR was inextricably and impermissibly linked to the sex of the claimants. It amounted to a knee jerk reaction in response to adverse media coverage of male officers. This was related to the fact that the claimants were employed in a unit where a former female officer had been successful in a claim for sex discrimination and in respect of which GR was of the view (without evidence to support that view having been presented to the Tribunal) that a “boy’s club” mentality persisted. The Tribunal accepted the evidence of the claimants and AM that senior management in the force had continued to hold that view despite the fact that the officers who had been the subject of the previous Tribunal were no longer in the unit, and that officers were regularly required to undertake equalities training, that there were still issues in the unit in relation to sexist behaviours. GR took the decision based on his view that there was something sexist or misogynistic or which could appear to be sexist or misogynistic in the claimants having their picture taken with a female celebrity. While GR sought to emphasise the relevance of the claimants having stopped the car on a double yellow line in his decision making, the Tribunal came to the view that he took the decision principally on the basis of his unwarranted perception of the claimants’ conduct as male officers and that there was something inappropriate about it.[83]The Tribunal formed the view that GR wished to make an example of the claimants as male officers to demonstrate that he was taking active steps to stamp out any conduct by male officers which could be viewed as sexist in the unit even though there was nothing whatsoever sexist or misogynistic about the behaviour of the claimants. Rather, GR had jumped to conclusions because of the nature of the media coverage and comments he was referred to regarding that coverage. Having jumped to that conclusion, he then sought to establish an ex post facto justification of his decision by later suggesting that he had regard to the competencies officers required to have in the unit, which were not in his mind at all when he made the decision.[84]The Tribunal came to this view for a number of reasons. i. GR had no regard and did not even ask about the relevant procedure to be followed in permanently withdrawing firearms authorisation from the claimants before taking the decision. ii. No notes were taken of the meeting at which the decision was taken and no contemporaneous record of the decision-making process was ever produced. iii. The terms of the statement taken from Superintendent l’Anson, which recorded that GR had stated during the meeting resulting in his decision, that he wanted “to take a firm stand” and that the underrepresentation of female and BME officers within OSD had been discussed as had the need to change the culture in the firearms unit. iv. The reference by GR in the notes which were placed on the internal portal to consideration having been given to the “wider context in respect of current commentary around policing especially the behaviour of male police officers towards females”. v. That a more detailed ex post facto reasoning for his decision was set out on his behalf, after he was aware that the claimants had alleged the decision had been discriminatory which he sought to link to competencies. vi. That GR was focussed on the initial negative media coverage and did not ask for any assessment of the coverage more generally, which at the very least included a significant amount of supportive comments in relation to the claimants. vii. That there was no requirement to rush a decision and no reason why the decision could not have waited until the professional standards investigation had been completed. viii. There was no effort to involve the FARI officer or the claimants’ direct line managers who had knowledge of them at the time in the decision making process. ix. GR said that he looked at the incident as a whole and did not make any effort to determine whether each of the officers had a different role to play or should be treated differently. x. There was no effort to let the claimants’ give their side of the circumstances before reaching the decision. There was no effort to find out about the claimants work history or performance before making the decision. xi. The instruction not only that the claimants’ authorisation should be permanently withdrawn but that they would not be allowed to work in OSD again, which was entirely disproportionate and without justification. xii. The inconsistent nature of the evidence of GR before the Tribunal, in particular that it had been an easy decision (when in writing he had said the opposite); and the extent to which he had actually looked at the comments made by the public in relation to the matter.[85]In these circumstances, the Tribunal was of the view that the decision of GR to permanently withdraw the claimants’ firearms authorisation amounted to direct discrimination, based as it was on his subjective views of male police officers conduct rather than the conduct of the claimants as individuals and an unreasonable assessment that there had been something sexist or inappropriate in the claimants’ conduct towards Ms Storm.[86]The Tribunal was also of the view that there was no evidence to suggest that female officers in the same circumstances, that is having stopped on a double yellow line, engaged a celebrity (male or female) in conversation, and had their picture taken with them, would have been treated in the same manner. Indeed, given that the evidence of the respondents was that they had difficulty in recruiting and retaining female officers, the linkage of the respondent of the claimants’ conduct to issues of male officers conduct towards women and reference to equalities issues, the Tribunal concluded that female officers would not have been treated in the same manner. The decision to transfer the claimants out of OSD[87]The Tribunal then considered the decision that the claimants be required to transfer out of OSD. There appeared to be some confusion over the date on which this decision was taken. The date in the claimants’ Scott Schedule was 2 October 2024, but the evidence was that it was 25 October 2024 that the claimants were informed of GR’s decision. The Tribunal came to the view that this decision also amounted to direct discrimination because of the claimants’ sex. This was for the same reasons in general as the Tribunal concluded that the decision of 6 March was direct discrimination. The Tribunal came to the view that GR was not willing to reconsider his decision which he had previously taken which was that the claimants were not welcome in OSD which was part of his decision of 6 March. His evidence before the Tribunal was that he was surprised to discover that the claimants were still working in OSD in October.[88]The outcome of the grievance had been that BS asked GR to explore any roles for the claimants in OSD. He made no effort to do so or instruct anyone else to do so. He took the opposite approach and instructed that they be required to complete transfer forms on the day. It was only because the claimants’ Inspector had taken the view that this would be unfair, that the claimants were given the weekend to consider what options they would put on the forms.[89]Moreover, despite the direction of BS that efforts be made to accommodate the claimants in OSD, GR gave an instruction that the claimants should not include any OSD role in their preference form.[90]GR was not willing to review the decision he had previously made and did not want the officers in OSD. This was inextricably linked to the sex of the claimants and GR’s efforts to make an example out of them because they were male officers and amounted to direct discrimination. Were these claims in time?[91]Although not raised by the respondent in their submissions, the Tribunal considered whether the claimants’ claims of direct discrimination had been made in time. The Tribunal came to the view that the conduct of GR amounted to continuing conduct between the decision of 8 March and 2 or 25 October 2024. The claimant’s claims were therefore lodged in time. Even if the Tribunal is wrong in its view that this amounted to a continuing course of action (in terms of section 123 (1)(3)(a)) and it could be said that the claims had not been lodged in time, there was no prejudice to the respondent in answering the allegations, and the respondent did not raise the issue of time bar in submissions. Therefore, had the claims not been lodged in time, the Tribunal would have come to the view that it would be just and equitable to determine them nonetheless. The decision of Sergeant Waugh and AM to speak to the claimants on 8 March[92]The Tribunal was not entirely clear on what basis it was said that this amounted to direct discrimination because of the claimants’ sex. The meeting took place because the claimants’ line managers were required to inform them of the decision which had been taken. The requirement to have a meeting was nothing to do with the claimants’ sex. There was no suggestion for instance that the line managers were aiding and abetting GR in his decision making. The Tribunal accepted that in fact, AM was unhappy about the decision.[93]The meeting was not called because of the claimants’ sex but because a decision had to be communicated to them. Female officers would have been treated in exactly the same manner and this did not amount to direct discrimination. BS decision not to uphold the claimants’ grievance[94]BS agreed with the decision which had been made by GR and supported it. However, there is a significant difference between agreeing with a decision and making the original decision. The act the claimants complain of is the failure to uphold the grievance, and so the question is whether if a female officer had brought a similar grievance would it have been upheld. There was no evidence to suggest that such grievance would have been upheld if the claimants had been female. The fact that BS made reference in her decision to “the behaviour of male officers towards females both within the Service and the wider public” did not render her decision an act of direct discrimination. Did the meeting of 8 March amount to harassment related to sex?[95]The claimants’ position was that being summoned to the meeting on 8 March and then being chastised and in particular reference being made to misogyny amounted to harassment related to the claimants’ sex. However, the Tribunal concluded that AM had not accused the claimants of misogynistic behaviour. Instead he had expressed his concern as to how the claimants’ behaviour would be perceived by senior management, given his view that senior management still thought the unit had issues in relation the perception of it being a ‘boys’ club’.[96]There is little doubt that both claimants would have been uncomfortable and upset at this meeting. However, there was nothing inappropriate said or done to them which could reasonably allow them to conclude that the conduct of the meeting had anything to do with their sex. The claimants had conflated what was being said to them about the perception of senior management and the conduct of the meeting itself.[97]No doubt the conduct was unwanted in the respect that the claimants did not want to be at the meeting or discuss the matters. However, neither the requirement to attend the meeting nor anything said or done at the meeting was related to the claimants’ sex and therefore did not amount to harassment. The failure to follow the process for permanent withdrawal[98]The Tribunal was of the view that this was a fact from which an inference of discrimination could be drawn rather than free standing conduct which was capable of amount to harassment. The decision to permanently withdraw authorisation and to transfer the claimants[99]The Tribunal is of the view that these matters are properly categorised as acts of direct discrimination rather than harassment. BS endorsement of the decision of GR[100]The Tribunal agreed with the respondent’s analysis of this aspect of the claimants’ claims. Reference was made by the respondent in submissions to Worcestershire Health and Care NHS Trust. As highlighted in that case the conduct complained of had to be related to the protected characteristic. No doubt the outcome of the grievance was not welcomed by the claimants, but that was not sufficient to amount to unlawful conduct for the purposes of section 26. The language used by BS in her decision may have been unwelcome to the claimants but that did not of itself amount to harassment for the purposes of section 26. The decision to deal with the grievance appeal and complaint together[101]There was no dispute that the claimants had done a protected act in that they had alleged that they had been subjected to unlawful treatment related to their sex.[102]It is accepted that not involving the Chief Constable in dealing with the complaint against BS amounted to a detriment. However, this was nothing to do with the fact that the claimants had complained of discriminatory treatment.[103]There was simply no evidence to suggest that the reason for combining the two matters was related to the claimants’ complaints of discrimination. At best the claimants sought to argue that there was a “subconscious disdain for the grievance and a conscious prioritisation of swift finality over and above the claimants’ right to be heard by the Chief Constable.”[104]The Tribunal accepted the respondent’s submissions that the decision was taken because it was thought to be the most appropriate way to proceed. Even if the decision was taken because the respondent more generally sought to keep the Chief Constable out of the matter, that was not suggestive of the decision being related to the protected act.[105]The decision did not amount to an act of victimisation. Remedy[106]The Tribunal then went on to address the issue of remedy. The claimants claim compensation in relation to loss of earnings as set out below. The basis of calculation of these sums had been agreed between the parties.[107]In addition, both claimants seek an award for injury to feelings. Any award for injury to feelings should be compensatory and not punitive. An award should not be inflated by feelings of indignation at the conduct of a respondent. Guidance is set out in Prison Service and ors v Johnson 1997 ICR 275 in relation to the general principles to be considered when making an award. More recently guidance has been provided by the EAT in the case of Eddie Stobart Ltd v Graham 2025 EAT 14. In particular, it should be borne in mind that the manner of discrimination is neither determinative of, nor a proxy for, the seriousness of a claimant’s injury. It was also noted that a tribunal might find it helpful to consider “the existence of ridicule or exposure. Discrimination played out in front of colleagues or others to see may well cause greater harm” (see paragraph 47). Consideration should be given to a claimant’s description of their injury, the duration of consequences, effect on past, current and future work, and effect on personal life or quality of life. PC Jones[108]PC Jones had losses in respect of sick pay when his pay was reduced to half pay for the period between 18 January to 17 March 2025. There is a net loss of £2646.59. The Tribunal was satisfied the principal cause of PC Jones absence was the unlawful treatment by the respondent. While the adverse comments on social media would no doubt have had an impact on him, it was the conduct of the respondent which was the principal cause of his illness which led him to be absent. It would therefore be just and equitable to compensate him for that loss.[109]In terms of injury to feelings, and taking into account the guidance set out in Eddie Stobart Ltd (above), PC Jones felt humiliated in front of his colleagues. That state of affairs has continued and while not technically a demotion in that PC Jones is still a police officer, the transfer out of OSD which is specialist and highly sought after role has had a significant impact on his career prospects as well as his reputation. The Tribunal also noted that PC Jones was considering whether he could continue in his career with the respondent at all given how he had been treated. It was accepted that PC Jones had not only wanted to be a police officer but had intended to have a career in armed policing. The actions of the respondent have left him feeling unsupported and that he has been made an example of, without justification. PC Jones also gave evidence, which was accepted, that he had previously been very active as a keen cyclist and pursued other outdoor activities, but has, following these events, struggled to continue to participate in any such activities. It was also accepted that treatment had an impact on his personal life where he felt humiliated by having to tell his family what had happened and felt branded as a misogynist. He continues to take medication. In all of these circumstances, the Tribunal was of the view that an award in the mid Vento band was appropriate and that the respondent should pay to the claimant the sum of £20,000 in respect of injury to feelings. PC Tunnock[110]PC Tunnock seeks compensation in respect of missing out on a temporary assignment of OSD Firearms Sergeant. It was agreed that the net loss suffered in that respect was £1670.56. The Tribunal was of the view that PC Tunnock should be compensated in respect of these losses.[111]Turning to the issue of injury to feelings, much of what is said above in relation to PC Jones is also applicable to PC Tunnock in terms of the impact on him, his career prospects and his reputation. In addition, while on the one hand PC Tunnock missed out on a temporary promotion, he has now been given a temporary promotion, albeit not in OSD. He has not taken medication, but did undergo counselling and the Tribunal accepted his evidence that events have significantly impacted his mental health and the extent to which he can trust his employer and his career progression. He too wanted a career in armed policing and that is unlikely to be possible now, albeit it would be open to the respondent to consider offering both officers the opportunity to return to the Firearms Unit, should they feel able to do so. PC Tunnock did not have the same level of sickness absence as PC Jones, but the Tribunal also bears in mind that this does not mean that the conduct did not have a similar impact on him. For all of these reasons, the Tribunal also came to the view that an award of £20,000 in respect of injury to feelings would be appropriate. Interest[112]Interest is awarded on the compensation for injury to feelings for both claimants at the judicial rate of 8% from 4 March 2024 to 10 July 2025, which is £20,000 x 8% (£1,600/52) = £30.76 per week x 70 weeks = £2,154.