MRS S M MULLINS v THE COMMISSIONER OF POLICE OF THE METROPOLIS [2003] UKEAT 1440_01_0704

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1440_01_0704Case No Appeal No. EAT/1440/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS S M MULLINSAPPELLANTTHE COMMISSIONER OF POLICE OF THE METROPOLISRESPONDENT
Before
Mr Justice Rimer Mr D Bleiman Mrs M McArthurDate 7 April 2003
[1]APPEARANCES For the Appellant MS ANNA THOMAS Instructed By: Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH For the Respondent MS GWEN BANKOLE-JONES Instructed By: Metropolitan Police Service Solicitor's Dept New Scotland Yard Broadway London SW1H 0BG THE HONOURABLE MR JUSTICE RIMER : Introduction This is an appeal by Sylvia Mullins against the decision of an employment tribunal sitting at London South over five days in June and July 2001. The chairman was Miss V. Wallis and the tribunal's extended reasons were promulgated on 27 September 2001. Mrs Mullins was the unsuccessful applicant before the tribunal. The respondent to her application, and now to this appeal, is The Commissioner of Police of the Metropolis ("the Commissioner"). Mrs Mullins was represented before us by Ms Anna Thomas, and the Commissioner by Ms Gwen Bankole-Jones. Both counsel also appeared before the employment tribunal.[2]Mrs Mullins made a number of complaints to the employment tribunal, but withdrew some of them during the hearing, leaving for decision only her claims that she had been the subject of direct and indirect sex discrimination contrary to the Sex Discrimination Act 1975. Her claims were dismissed. Before coming to the issues raised by the appeal, we must set out fairly fully the essential findings of fact made by the tribunal: this is not a case in which it is easy to identify an isolated question of principle for determination by this appeal tribunal, and there was even a dispute before us as to the heads of complaint Mrs Mullins made to the tribunal and which it ought to have decided. The facts[3]Mrs Mullins is a police officer with the Metropolitan Police. Since 1987, she had been stationed on Greenwich Division, which encompasses police stations at Greenwich, Eltham and Plumstead. She is married and, at the time of the tribunal hearing, she had three children and was expecting her fourth. Mrs Mullins's third child, a daughter, was born on 12 October 1998. She breastfed her daughter and continued to do so until early 2001. Her complaints are, in general terms, that the Commissioner subjected her to treatment which, in view of her need to breastfeed her child, was unfavourable to her and amounted to both direct and indirect sex discrimination.

(a) Rest room facilities at Eltham Police Station

[4]Following her maternity leave, Mrs Mullins returned to work at Eltham Police Station on 19 April 1999. That had a room which was available as a rest room for expectant and nursing mothers, but shortly after her return to work that facility was withdrawn. This was because a reorganisation in Greenwich Division required Mr Haywood, the health and safety officer, to find accommodation for an increased number of managers, and he identified the rest room as suitable for use by him for his own office. The withdrawal of the rest room left Mrs Mullins needing a place of privacy in which she could express milk whilst at work. Mr Haywood suggested the ladies lavatory or the kitchen. The tribunal accepted Mrs Mullins's evidence that neither was suitable. She lodged a grievance about the matter through her federation representative, Ms Kitchener, and alternative facilities were provided. Mrs Mullins did not mention the matter of this particular grievance to her line manager, Mr Deacon, and he was unaware of the problem.

(b) Rest room facilities at Plumstead Police Station

[5]Whilst this grievance was running its course, the reorganisation in Greenwich division required Mr Deacon to move to Plumstead Police Station. He told Mrs Mullins she did not have to go with him and that there were no rest room facilities at Plumstead. But Mrs Mullins did elect to move with Mr Deacon, and they went to Plumstead in June 1999 where they shared an office. At Plumstead, there was also a problem as to where Mrs Mullins was to express milk. The tribunal's reasons reflect that there was a difference between Mrs Mullins and Mr Deacon as to what they said to each other about this, which the tribunal did not expressly resolve. The only option available at Plumstead was the ladies lavatory. The tribunal's finding was that "Mr Deacon did not fully recognise the problem that [Mrs Mullins] was facing, not least because she did not explain them in any detail. His overall attitude was to accept breast-feeding as a natural phenomenon that would not last for ever." After about five weeks, the problem was solved by Mrs Mullins being given the use of Ms Salmon's office. Ms Salmon worked two days a week, Mrs Mullins three.

(c) The November 1999 appraisal

[6]A practice of the Commissioner, known as "tenure," was one under which, as a matter of policy, an officer who had been stationed in a particular borough for ten years was required to move to another one. In accordance with the requirements of this policy, Mrs Mullins engaged in an annual appraisal with Mr Deacon in November 1999. She was required to complete a career management transfer form. She did so, identifying the work she liked, and indicating that she would like to join another community team, possibly a shop-lifting/high street team. She identified her preferred choice of posting as Bexleyheath, Bromley and Orpington, and Croydon, in that order. The form included a part asking whether there were any circumstances relating to Mrs Mullins's career which should be taken into account before any transfer decision was made. The tribunal found that this was the obvious place for her to mention that she was breastfeeding, but she did not do so. Mr Deacon completed his part of the form, and he did not mention breastfeeding either.

(d) The proposal to transfer Mrs Mullins to Lambeth

[7]The tribunal found that the Commissioner intended that Mrs Mullins's transfer was to be to an operational post, and that she would first undergo the necessary training at Greenwich. They found that the Commissioner had no reason, in January 2000, to consider there to be any problem attaching to such a transfer. In particular, Mrs Mullins had not identified any in the form she had completed. In fact, in January 2000, the Commissioner decided to abandon the "tenure" policy, which had been unpopular, but this did not affect proposed transfers already in the pipeline, and Mrs Mullins's was one of those. The tribunal found that Mrs Mullins did not understand that the change of policy did not affect such transfers.[8]Chief Inspector Nash became Mrs Mullins's new line manager in January 2000. On 11 January 2000, he told her that it had been arranged that she was to transfer to Lambeth Division. There was a discussion about breastfeeding. The tribunal found, on the basis of a particular memorandum to which they referred, that the Commissioner worked on the basis that six months for breastfeeding "was wholly reasonable and in this instance the OCU had been more than generous in the time that they have allowed." They found that Mr Nash left Mrs Mullins with the impression that this was the Commissioner's position "however gently he may have put it." Mrs Mullins had by then been breastfeeding her daughter for 15 months. (e) Mrs Mullins's appeal against the proposed transfer to Lambeth[9]Mrs Mullins appealed against her proposed transfer to Lambeth by a letter dated 18 January 2000. Her appeal was against that particular transfer, not against any transfer at all (although she accepted before the tribunal that her appeal should have been against any transfer). The detailed grounds of her appeal were to follow, but Mr Nash attached a note to her appeal letter suggesting a number of issues that needed to be resolved before any transfer: he listed childcare arrangements, lack of training, and asking her to perform operational duties whilst still breastfeeding, and he suggested her transfer be put on hold until these issues were resolved. Ms Ball, from personnel, responded, saying she was awaiting advice about the implications of operational duty whilst breastfeeding and suggested that Mrs Mullins should submit her appeal quickly. She did so, on 26 January 2000, complaining of excessive travelling time to Lambeth and the impact it would have on her childcare responsibilities. She suggested she was being treated differently from others in the division.

(f) Stress: the completion of the injury form

[10]On 27 January 2000, Mrs Mullins asked Mr Nash to complete an "injury on duty" form. She was complaining she had been caused stress because of the way her appeal and transfer were being handled. The tribunal found that, on advice, Mr Nash at first refused to complete the form, but later he did so. They found that his uncertainty about this demonstrated the Commissioner's lack of clarity in thinking about Mrs Mullins's case. They also found that it was likely that the Commissioner would initially be wary about a claim of work-related stress and would seek advice. Mrs Mullins's own perception of the position at this stage was that she was faced with a choice between(a) stopping breastfeeding, with its possible consequential effects on her daughter, and(b) combining operational duties with breastfeeding and putting her daughter at risk in that way.[11]On 3 February 2000, Mrs Mullins reported sick with stress. She had attempted to find the rota at Lambeth, but could not. She had overlooked that she would anyway first have to be trained before becoming operational. She felt unsupported. She remained on sick leave until January 2001.[12]Mr Nash telephoned her at home, told her the management team supported her appeal and asked her whether she wished to be transferred instead to Bexleyheath. He endeavoured to be constructive and supportive. She replied that Bexleyheath would be preferable to Lambeth, but she did not want to be transferred anywhere now that other transfers under the tenure policy were stopped. As we have said, the tribunal found she was in error in believing all transfers had been stopped: those in the pipeline before the change of policy were still being implemented.

(g) Mrs Mullins's appeal is upheld

[13]On 21 February 2000, Mr Nash telephoned Mrs Mullins to tell her that her appeal against a transfer to Lambeth had been upheld. She was instead to be transferred to Lewisham. This transfer was also to be on operational duties. The tribunal's findings about this, in paragraph 25 of its reasons, were that:
"25. … there had been scant consideration of [Mrs Mullins's] concerns about her ability to carry out operational duties whilst breastfeeding. [The Commissioner] appeared to have dogmatically followed [his] procedures without considering the welfare basis of the appeal. The Tribunal also found that officers can transfer on a non-operational basis, although this was not made clear to [Mrs Mullins] at the time. However, [Mrs Mullins] herself had not focused on the perceived difficulties of carrying out operational duties whilst breast-feeding."
[14]Mr Nash and Mrs Mullins discussed the potential risk to a breastfeeding officer on operational duties. He told her that, once she had transferred to Lewisham, it was Lewisham which would have to address this. The tribunal found that Mrs Mullins felt understandably let down by this. (h) Mrs Mullins presents her application to the employment tribunal[15]On 26 April 2000, Mrs Mullins presented her originating application to the employment tribunal. It complained of sex discrimination. Her complaints (and a description of the background to them, added by an amendment on 17 May 2000) cover about four pages. We will have to return to them.

(i) The meeting on 27 April 2000

[16]The following day, Mr Nash visited Mrs Mullins at home. Mrs Mullins's federation representative, Mrs Kitchener, was also there. Mrs Mullins raised a list of concerns about the proposed transfer to Lewisham, including(i) whether or not she would be able to wear body armour,(ii) what risks she faced of suffering injuries requiring medical attention other than the administration of paracetamol,(iii) what risks she faced in the way of exposure to hazardous chemicals and extremes of weather conditions,(iv) where she was expected to carry her breast pump, and(v) where she could express her milk whilst on operational duties. Mr Nash did not know at this meeting that Mrs Mullins had, the day before, complained to the employment tribunal.

(j) Dr Griffin's advice; risk assessments

[17]The Commissioner sought advice from the occupational health doctor, Dr Griffin, but the tribunal was not told what advice he gave. Dr Griffin did, however, give evidence to the tribunal. They found that he was not aware that Mrs Mullins's baby would only drink breast milk and that the health visitor's advice was that Mrs Mullins should continue to express milk so that her baby had a continued intake of milk. The tribunal found that Dr Griffin's general view, formed after consultation with colleagues from other police forces, was that most operational duties could be carried out by breastfeeding officers, with some allowances being made, for example with regard to public order duties.[18]The Commissioner had produced guidelines on risk assessment for line managers of breastfeeding officers and employees. No risk assessment was carried out in accordance with these guidelines in respect of Mrs Mullins, but the tribunal found that there would have been such a risk assessment if Mrs Mullins was still breastfeeding when transferred to operational duties. The tribunal found that any such transfer would have had to be preceded by a refresher training course of about 10 weeks' duration. (k) Mrs Mullins's appeal against her proposed transfer to Lewisham[19]Mrs Mullins appealed against this by a letter of 1 May 2000. Her ground was that any transfer from Greenwich would interfere with her breastfeeding arrangements. Her appeal was upheld on 10 May 2000, and so she was not required to transfer to operational duties.

(l) Mrs Mullins's second originating application

[20]This was presented on 11 October 2000. This raised a claim for alleged sex discrimination and victimisation. It appears to relate primarily to a complaint that she was placed on half-pay on 16 July 2000 pursuant to regulation 46 of the Police Regulations 1995 dealing with pay during sick leave. That aspect of Mrs Mullins's complaints is not the subject of her appeal to this appeal tribunal. (m) Mrs Mullins's status at the time of the hearing before the employment tribunal[21]Mrs Mullins was, at that time, carrying out non-operational duties at Greenwich borough. She was being paid the same as a police officer on operational duties. The tribunal found that, at any one time, around 5% to 10% of male officers are carrying out non-operational duties, compared with 27% to 30% of female officers. The issues before the tribunal[22]In paragraph 2 of their extended reasons the tribunal identified nine issues they understood they were being required to determine. On this appeal, Mrs Mullins complains that they did not also consider four further heads of complaint, which it is said were identified in her closing written submissions presented to the tribunal and which represented four heads of alleged direct discrimination under the Sex Discrimination Act 1975 ("the SDA").[23]We say straight away that if the tribunal did not understand these four heads of complaint to be before them for decision, we are not surprised, since the confusing way in which Mrs Mullins's case was presented to them provided a clear recipe for misunderstanding. The four disputed heads of complaint are as follows: 1. The withdrawal of the restroom facilities at Eltham and the inappropriate alternatives suggested. 2. The failure of Mr Deacon and others to identify or consider breastfeeding as a welfare consideration and to act accordingly with regard to the Commissioner's transfer policy. 3. The failure to respond to Mrs Mullins's specific and repeated requests for risk assessment and, in particular, the concerns she expressed about returning to operational duties whilst breastfeeding. 4. The Commissioner's position and approach on breastfeeding, namely that any period longer than six months was generous, notwithstanding that this was not a policy and there was no "intent to enforce."[24]In order to see whether those claims formed part of Mrs Mullins's complaint it is necessary to look first at her originating applications. Her first application was dated 16 March 2000, although it was not presented until 26 April 2000 and it was later amended on 17 May 2000 by a document in which Mrs Mullins set out some "Background since joining Metropolitan Police." She drafted that herself, and although its tone of complaint about the treatment she claims she suffered is unmistakeable, it does not identify with clarity the particular matters of discrimination of which she was making complaint. It is, however, fair to record that, in setting out the "Background," Mrs Mullins referred to the withdrawal of the rest room (item 1), although she made no mention of the alternatives offered. We find it difficult to identify any specific mention by her of item 2. As for item 3, she made three references to risk assessments for new and breastfeeding mothers, alleged that she asserted on one occasion that the Commissioner was obliged to carry an assessment out but does not allege any failure to respond to repeated requests for such an assessment. Her expressed complaints in that regard appear to be rather in respect of a possible breach by the Commissioner of the applicable regulations rather than any complaint of discrimination. We cannot identify any clear mention by her of item 4 in the originating application, although she does mention that she was told "that I was only allowed to feed my baby for six months, but that they had allowed me a year." Mrs Mullins's second originating application does not appear to provide any further clear identification of any of the four issues.[25]The confused identification of Mrs Mullins's case in her originating applications cried out for clarification so that the Commissioner could know what case he had to meet. It received it in some voluntary particulars, which we presume were drafted by counsel. They run to ten pages. They recorded that Mrs Mullins's two originating applications had been consolidated and made clear that incidents prior to April 1999 were "relied on as relevant background evidence and not substantive allegations." Under a heading "The Facts," the particulars set out 37 paragraphs of alleged facts. However, they did not identify those allegations which were said to found heads of complaint and those which did not. The particulars then introduced a new heading, "Sex Discrimination," below which paragraph 38 then asserted that:
"By reason of the matters referred to in paragraphs 1-36 above [Mrs Mullins] contends that she was unlawfully discriminated against by reason of her sex contrary to s1(1)(a) SDA. [Mrs Mullins] avers that less favourable treatment by reason of the fact that she was a breastfeeding mother is gender-specific treatment and therefore constitutes direct discrimination on grounds of sex. [Mrs Mullins] complains of:" (Our emphasis) and the particulars then listed seven heads of complaint of alleged direct sex discrimination. Those heads did not include any of the four heads of complaint we have referred to above and which Mrs Mullins now says were complaints upon which the tribunal ought to have ruled. Paragraph 40 then added a claim of indirect discrimination in the following terms: "
Further or in the alternative [Mrs Mullins] was unlawfully discriminated against contrary to s.(1)(1)(b) read together with s.6(2)(b) of the SDA. [Mrs Mullins] contends that the requirement or condition applied to her was the requirement or condition to return to operational duties."[26]So paragraphs 38 and 40 of the particulars expressly identified eight matters of which Mrs Mullins was complaining. We will list later in this judgment (when we come to the tribunal's decisions) the nine issues which the tribunal identified at the beginning of its reasons as falling to be decided by it. We agree with Ms Bankole-Jones that, although expressed in the tribunal's own wording and extended in number from eight to nine, those issues derived from, and comprised, the same eight heads of complaint identified by Mrs Mullins in paragraphs 38 and 40 of the voluntary particulars.[27]In support of the argument that, in addition to dealing with those eight complaints, the tribunal should also have considered the four additional heads of complaint we have referred to, Ms Thomas pointed out that her closing written submissions to the tribunal made express reference to these four matters, together with the eight other heads of complaint. They were included in paragraph 2.10 of the written submissions, which commenced with the words "It is submitted that the following are incidents of less favourable treatment." Ms Bankole-Jones acknowledges this, and concedes that she raised no objection at the hearing to Ms Thomas's reliance on the four additional points. But she says that, in the light of the unambiguous terms of paragraphs 38 and 40 of the particulars ("[Mrs Mullins] complains of", followed by a reference merely to eight heads of complaint), the Commissioner had come to the hearing prepared only to meet those eight claims, which did not include any of the further four heads; and she said that Ms Thomas's reliance on them in closing her case was consistent with the stance that they simply formed part of the background against which the undisputed heads of complaint were being advanced. Sex discrimination cases do, after all, require and entitle the tribunal to look at all the circumstances of the case in deciding whether, in so far as inferences have to be drawn, they can be drawn. She says that the only issues which the tribunal had to decide, or which it should have decided, were the eight issues Mrs Mullins specifically identified as forming the subject matter of her complaint.[28]We accept Ms Bankole-Jones's submissions on this. Whilst we recognise that proceedings before employment tribunals are and should be conducted in a relatively informal manner, basic fairness demands that a respondent should be entitled to know - and before the evidence is called - the precise nature of the complaint he has come to meet. This was particularly important in this case, in which the Commissioner was faced with a confused mass of complaints, which needed to be identified with clarity. The voluntary particulars purported to do just that, and they can have left the Commissioner in no doubt that he only had to meet the eight heads of complaint identified in paragraphs 38 and 40. In our view, he was fully entitled to conclude that those paragraphs identified the boundaries of the battleground, and we are not surprised that the tribunal was left with a similar understanding. In our view, if Mrs Mullins wanted to extend the range of issues at the hearing to encompass the four additional heads of complaint, then she should have sought to do so no later than the outset of the hearing. She did not do so, and even then it might have been too late. It was certainly too late by the time of the presentation of Ms Thomas's closing written submissions. We reject the first head of appeal, namely that the tribunal made an error of law in not also making a decision on any of these four additional heads of complaint. We turn now to consider whether the tribunal committed any error of law in making the decisions which it did make. The legislative background[29]Although it does not appear to have formed a central part of Mrs Mullins's case, or of the tribunal's reasons, reference was made both before the tribunal and to us of the Pregnant Workers Directive (92/85/EEC) ("the Directive"), and to the Management of Health and Safety at Work Regulations 1999 (SI 1999/3242) ("the Regulations"), which, in part, implemented the Directive in the UK. Ms Thomas's submission was that the SDA needed to be construed by reference to these provisions, or at least the former.[30]The Directive recites, inter alia, that:
"…pregnant workers, workers who have recently given birth or workers who are breastfeeding must be considered a specific risk group in many respects, and measures must be taken with regard to their safety and health; … … some types of activities may pose a specific risk, for pregnant workers, workers who have recently given birth or workers who are breastfeeding, of exposure to dangerous agents, processes or working conditions; whereas such risks must therefore be assessed and the result of such assessment communicated to female workers and/or their representatives."
[31]In cases where breastfeeding workers may be exposed to specific risks in their working conditions, article 2 requires the employer to make an assessment of the nature and degree of the risk in order to decide what measures should be taken. Article 5 provides that:
"if the results of the assessment … reveal a risk to the safety or health or an effect on the pregnancy or breastfeeding of a worker … the employer shall take the necessary measures to ensure that, by temporarily adjusting the working conditions and/or the working hours of the worker concerned, the exposure of that worker to such risks is avoided."
[32]Regulation 16 of the Regulations implemented the need for employers to make appropriate risk assessments in circumstances including the exposure of breastfeeding mothers to the type of risk the Directive had in mind.[33]Ms Thomas submitted that the type of risks in question would include the sort of risks to which breastfeeding police officers on operational duties would be exposed. In this case, the tribunal found that no risk assessment had been carried out in respect of Mrs Mullins, but that one would have been carried out had she been transferred to operational duties. There does not appear to have been any finding by the tribunal that, prior to any such transfer, Mrs Mullins was or might be subject to any risks of the nature contemplated by the Directive such as to require the Commissioner to carry out a risk assessment of the type required by it. The tribunal's decisions[34]We will explain these by reference to the nine separate issues identified by the tribunal in paragraph 2 of its extended reasons. (a) Whether or not there was a requirement that [Mrs Mullins] transfer from Greenwich in November 1985 after it had been decided to cancel this policy.[35]The tribunal's finding was that the requirement to transfer Mrs Mullins was not put in place after the Commissioner had decided to cancel this policy. They found that those transfers already in the pipeline before the announcement of the decision to change the policy remained in it. In short, the proposed change of policy was not to be retrospective. The tribunal found that Mrs Mullins's transfer was already in the pipeline, and that the decision that it should be progressed in the normal way involved no treatment of her which could be said to relate to her sex. Although the tribunal do not say so in terms, we understand them to have found that all that the Commissioner was doing was applying to her the like treatment which he applied to all members of the force, both male and female. This was a finding of fact which we consider it is not open to Mrs Mullins to question on this appeal. In any event, we cannot see how the keeping of Mrs Mullins on the transfer list could possibly be regarded as involving any discrimination against her on the grounds of sex. She might have been transferred to a non-operational post which posed no greater problems for her breastfeeding needs than her current post. (b) Whether or not [the Commissioner] had a policy to permit only a limited time of breastfeeding.[36]The tribunal found that the Commissioner did not have a policy of only allowing a limited time for breastfeeding, although they found that he did have a view that ordinarily it would only last for six months in most cases. The tribunal concluded that there was no intent on the part of the Commissioner to enforce any time limit against Mrs Mullins. This is a finding of fact which cannot be re-opened on this appeal. We comment that, had the Commissioner in fact had a policy of only allowing a limited time for breastfeeding, that would not have provided breastfeeding mothers with the protection the Directive intended them to enjoy: the Directive imposes no limitation of time. (c) Whether or not there was a failure to provide [Mrs Mullins] with proper information on the proposed transfers despite repeated requests.[37]The tribunal found that there was a failure to provide her with proper information, and they referred in particular to the failure to provide details of the rotas at Lambeth. The tribunal also held that "as there was an appeal against that transfer and as it did not take place, the Tribunal concluded that this failure did not result in any detriment to [Mrs Mullins], nor was it related to [Mrs Mullins's] gender."[38]Mrs Mullins's case is that the Commissioner's treatment of her was such as to cause her stress to a degree which required her to give up work from February 2000 to January 2001. It is said that that is the detriment which his allegedly discriminatory treatment caused her. However, crucial to this part of the tribunal's finding was that, in so far as there was a failure to provide Mrs Mullins with information, the failure was not referable to the fact that she was a woman and not a man. Again, that finding is not one which can be re-opened on this appeal and we regard it as fatal to any claim that the failure constituted direct discrimination against her. (d) Whether or not the requirements of [the Commissioner] that [Mrs Mullins] return to operational duties when she was still breastfeeding constituted direct discrimination on the grounds of sex.[39]The tribunal's conclusion on this was that:
"… the proposal that [Mrs Mullins] return to operational duties while still breast-feeding did not constitute discrimination on the grounds of sex. The Tribunal concluded that, although it accepted [Mrs Mullins's] views about why she could not carry out operational duties, [the Commissioner] had medical advice to say that with some exceptions operational duties could be performed by a breast-feeding Police Officer. In any event, this was a proposal rather than a requirement because [Mrs Mullins] was able to appeal against the proposal and her appeal was upheld. The Tribunal concluded that given that the appeals were dealt with speedily, there was no detriment to [Mrs Mullins]."
[40]The complaint here was, apparently, that the decision that Mrs Mullins should transfer to operational duties amounted to direct sex discrimination against her. Nothing we have read in the tribunal's extended reasons satisfies us that the tribunal made an error of law in concluding that it did not. The evidence seems to have been that (until the change in January 2000) the transfer policy applied across the board to all police officers, both men and women. When Mrs Mullins filled in her transfer form in November 1999 she knew that it was for the purposes of the implementation of the transfer policy, appears to have completed it positively, indicating the type of work she enjoyed doing, and, in particular, said nothing to the effect that her breastfeeding commitments (which she did not even mention) put a transfer to an operational post out of bounds. The tribunal accepted the Commissioner's evidence that, with some exceptions, operational duties could be carried out by breastfeeding officers. It also accepted his evidence that, if such a transfer took place and Mrs Mullins was still breastfeeding, a risk assessment would have been carried out on her. This is because at that point there would have been a requirement for such an assessment under the Directive and Regulations.[41]How, therefore, in all these circumstances can the decision to transfer have amounted to direct discrimination against Mrs Mullins? We do not see how it can. The making of the proposal was simply the implementation of a policy which applied to men and women alike; and the special position of breastfeeding women once any transfer was actually effected would be dealt with by an appropriate risk assessment. We accept that, by February 2000, by which time Mrs Mullins had decided that the transfer policy is one that should never have been applied to her in the first place, she began to suffer stress of a degree sufficient to cause her the sickness absence of the length which we have mentioned, and we have referred in paragraphs 10 and 11 above to certain factors the tribunal found which may have contributed to that stress. But if, as the tribunal found, the decision to transfer her was not discriminatory on the grounds of sex, any stress-related detriment suffered by Mrs Mullins did not result from any discrimination. (e) Whether the failure of [the Commissioner] to carry out a risk assessment constituted discrimination on the grounds of sex.[42]The tribunal found that this did not constitute sex discrimination. It found that she was away on sick leave, did not carry out operational duties whilst breastfeeding and that, had she started such duties, or training for them, the Commissioner would have carried out a risk assessment. The tribunal found that the Commissioner was well aware of his duty in this respect, and recorded that Inspector Deacon had carried out an assessment on Mrs Mullins when she was pregnant.[43]We do not see how this conclusion can be faulted as involving any error of law. There is no evidence referred to in the tribunal's reasons indicating that the duties which Mrs Mullins was performing prior to her departure on sick leave in February 2000 were of the nature requiring a risk assessment, and the proposal to transfer never reached the point at which a risk assessment was required since(a) Mrs Mullins went off on sick leave and(b) anyway appealed successfully against a transfer to an operational duty. We do not understand how the failure to perform a risk assessment which did not need to be performed can have amounted to sex discrimination against Mrs Mullins. (f) Whether or not the failure of Chief Inspector Nash to complete an injury report form amounted to discrimination on the grounds of sex.[44]The tribunal answered this in the negative. Mr Nash's evidence, which the tribunal accepted, was that the delay in completing the form was because the injury was said to be work-related stress, an unusual claim about which he first needed advice. The tribunal found that the form was later completed, and that there would have been a delay in its completion even if the complainant had been a man. We infer that the tribunal was finding that, even if there was any detrimental treatment of Mrs Mullins in relation to the completion of the form, a man complaining of work-related stress would have suffered a like delay, and so that it cannot be said that any detriment was on grounds of sex. That was a conclusion of fact behind which Mrs Mullins cannot go on this appeal. (g) Whether or not the comments made by Chief Inspector Nash about [Mrs Mullins's] complaints and requests and his approach to her concerns constituted sex discrimination.[45]The tribunal's conclusion was that they did not. They concluded that:
"… Inspector Nash was a credible witness and that he had endeavoured to help [Mrs Mullins] as far as he could with regard to her concerns. Some of his comments may have been irritating to [her] but the Tribunal accepts that he was endeavouring to show some empathy and that he would have done so had the person in question been a man."
[46]In order to review whether there was any error of law in this conclusion, it is necessary to identify what comments Mr Nash was found to have made. They appear to be as follows. First, in January 2000, he had a discussion with Mrs Mullins and gently "left her with the impression" that the Commissioner viewed six months for breastfeeding as reasonable and that Mrs Mullins's extra time for breastfeeding had been generous. Second, Mr Nash appears to have provided positive support to Mrs Mullins in her appeal against the transfer to Lambeth: we have summarised what he said in his note appended to her statement of appeal of 18 January 2000. Third, the tribunal found that Mrs Mullins made a complaint that "on 20 January [2000] Mr Nash had been aggressive towards her …" but made no further findings as to the nature of the alleged aggression. Fourth, the tribunal made findings as to Mr Nash's immediate response to Mrs Mullins's departure on sick leave in February 2000. His first contact was apparently one of support for her in her appeal against a transfer to Lambeth, her own stance by then being the unrealistic one that she did not now want to be transferred anywhere. Fifth, Mr Nash contacted her on 21 February 2000 to tell her that her appeal against the Lambeth transfer had been upheld and that she was instead going to Lewisham. There was a discussion as to the potential risk to a breastfeeding officer on operational duty, and the tribunal found "it is likely that Mr Nash said that once [Mrs Mullins] had transferred to Lewisham, this was a problem that they would have to address. Understandably, [Mrs Mullins] felt let down by this." Fifth, Mr Nash saw Mrs Mullins at her home on 26 April 2000, when he said he would seek advice about the breastfeeding issues raised by her were she to embark on operational duties (body armour, likelihood that she might need medication other than paracetamol, possibility of exposure to extremes of temperature, where to carry her breast pump, and where to express milk whilst on duty). Mr Nash mentioned to her that his wife had recently returned to work for Marks and Spencer whilst still breastfeeding. The tribunal rightly observed that a breastfeeding mother working for Marks and Spencer was likely face demands somewhat different from one on operational duties as a police officer but found that "Mr Nash was seeking to show [Mrs Mullins] that he was aware of some of the practical problems in breastfeeding however inappropriate the comparison." Sixth, in May 2000, Mr Nash told Mrs Mullins of the successful outcome of her appeal against her transfer to Lewisham.[47]The tribunal's finding of fact that Mr Nash was generally seeking to be helpful to Mrs Mullins in her problems is one which we infer they were entitled to make, and we anyway cannot re-open that finding on this appeal. The comment about Lewisham having to address her problems once she had transferred to them might perhaps have appeared to Mrs Mullins to be an unsympathetic one, but it appears to us to have been a realistic observation for Mr Nash to make. The one aspect of Mr Nash's observations to Mrs Mullins which has caused us concern was the impression he conveyed to her, albeit gently, that the Commissioner regarded breastfeeding for more than six months as a matter of generosity rather than a right whose exercise the Commissioner had to accommodate.[48]We can understand that that observation too was, or may have been, upsetting to Mrs Mullins. We are prepared to accept that breastfeeding is as gender-specific as pregnancy, and that in consequence it is unnecessary to consider whether Mr Nash might have made like remarks to some hypothetical male comparator. But the tribunal made no finding that the remark caused any detriment to Mrs Mullins, nor can we see that it can have caused her any detriment in the nature of disadvantage in her workplace or otherwise. We recognise that the whole matter of the transfer appears to have resulted in the suffering by her of stress of a degree sufficient to require her to go on sick leave for nearly a year. But we cannot see how that can be said to have been caused by any allegedly discriminatory treatment from the Commissioner – including any remarks made by Mr Nash.[49]In this regard last, the position appears to us to have been tolerably clear. In November 1999, the Commissioner's tenure policy was still in operation. Mrs Mullins willingly completed her appraisal form in connection with that policy, and conveyed in it a willingness to be transferred, making no mention of her special breastfeeding needs. By January 2000, there was a decision to cancel the tenure policy, but not retrospectively, leading to the making by Mrs Mullins of an apparently mistaken decision that she ought not to have to transfer at all. Her stress appears to have been induced by the thought that, despite her appeals, she might have to do so. But even if she did, and was transferred on operational duties, the tribunal's finding was that a risk assessment would have been carried out, and the inference is that her special breastfeeding needs would have been catered for. In our view, all this points to the conclusion that Mrs Mullins's stress was not caused by any allegedly discriminatory treatment by Mr Nash or anyone else. (h) Whether or not the decision to put [Mrs Mullins] on half pay during her sick leave constituted sex discrimination.[50]The tribunal's decision on this was that it did not. They concluded that:
"… [the Commissioner's] sick pay scheme provided for such a reduction after a certain amount of sick leave had been taken. [Mrs Mullins] had exceeded that amount of sick leave. The reason for her sickness was stress, not pregnancy related and at that time she was outside the protected period from pregnancy to the end of maternity leave. The Tribunal concluded that [the Commissioner] followed their procedure with regard to a reduction in sick pay based on its rules and not for any reason relating to gender."
We do not understand this conclusion to be the subject of any appeal. (i) Whether or not there was indirect discrimination when [the Commissioner] applied to [Mrs Mullins] a requirement or condition that she return to operational duties.[51]The tribunal found that there was a requirement or condition applied to Mrs Mullins that she should carry out operational duties when fit to do so. The requirement or condition to carry out operational duties applied to male and female police officers equally. It found that 90-95% of male officers can comply with the requirement, and that 70-75% of female officers can comply, so that that the proportion of female police officers who can comply is considerably smaller.[52]Having so found, the tribunal considered whether any detriment was caused to Mrs Mullins by her inability to comply with the requirement or condition that she return to operational duties. The Commissioner's evidence was that breastfeeding mothers could largely comply with operational duties, with some adjustments being made to those duties. But the tribunal found that Mrs Mullins did not want to transfer to operational duties because(a) it would add to her travelling time and impinge on her childcare duties and(b) she had concerns about her ability to carry out such duties whilst breastfeeding. So she appealed against the transfers and her appeals were upheld, she did not transfer, she did not have to comply with the condition and did not suffer any salary reduction in consequence. As no transfer took place, the absence of a risk assessment did not constitute a detriment. The tribunal's conclusion was that "the requirement or condition had not been applied in such a way as to cause any detriment to [Mrs Mullins]."[53]We cannot see how the tribunal's conclusion on this aspect of the case contained any error of law. The question for the tribunal was whether the requirement or condition that Mrs Mullins should transfer to operational duties caused her any detriment because she could not comply with it (see section 1(1)(1)(b)(iii) of the SDA). It appears to us that the evidence shows that she could have complied with it, with appropriate adjustments made to meet her breastfeeding needs, but that she chose not to comply with it because she did not want to. To that end, she appealed, her appeal was successful and she was excused compliance with it. That being so we fail to see how she can say she suffered a detriment because she could not comply with it. Her alleged detriment is the stress she suffered resulting in her protracted sick leave. That was not caused by any inability to comply with the requirement or condition. Although the tribunal do not say so in terms, we regard it as a clear inference from their findings that it was caused by her concern that she might have to comply with it whereas she did not want to.[54]We conclude, therefore, that the tribunal was correct to dismiss Mrs Mullins's claims that she was the victim of direct and indirect sex discrimination. We dismiss her appeal.[55]We add that an issue arose during the hearing before us as to the jurisdiction of the employment tribunal to entertain Mrs Mullins's complaints, although no such point was taken before it. The point only emerged following the decisions of this appeal tribunal and of the Court of Appeal in Chief Constable of Bedfordshire Police v. Liversidge, both post-dating the decision of the employment tribunal in the present case and being reported respectively in [2002] IRLR 15 and [2002] ICR 1135 . The point turns on whether the Commissioner could in any event be regarded as having performed, or as being treated as having performed, the particular acts of which Mrs Mullins makes complaint. Since we have decided that the tribunal was correct in dismissing Mrs Mullins's claims on the facts, we do not need to consider the point further. We should say that, had we concluded that that the tribunal had been in error and that a case of sex discrimination had (subject to the Liversidge point) been made out, we would have remitted for further hearing to the employment tribunal the question of jurisdiction and, subject to that first being decided in Mrs Mullins's favour, the question of remedy.