MR A DANSIE v THE COMMISSIONER OF POLICE FOR THE METROPOLIS [2009] UKEAT 0234_09_2010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0234_09_2010Case No Appeal No. UKEAT/0234/09Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A DANSIEAPPELLANTTHE COMMISSIONER OF POLICE FOR THE METROPOLISRESPONDENT
Before
His Honour Judge Peter Clark Mrs A Gallico Mr D J JenkinsDate 20 October 2009
[1]APPEARANCES For the Appellant MR DANIEL DYAL (of Counsel) Instructed by Messrs Russell Jones & Walker Solicitors Swinton House 324 Gray's Inn Road London WC1X 8DH For the Respondent MS ALICE MAYHEW (of Counsel) Instructed by Metropolitan Police Directorate of Legal Services 1st Floor New Scotland Yard 8-10 Broadway London SW1H OBG SUMMARY SEX DISCRIMINATION Direct HARASSMENT Conduct Dress/appearance policy. Whether hair length for male police officer in training discriminatory; whether threat of disciplinary action harassment. Consideration of Smith v Safeway ; DWP v Thompson. No error of approach by Employment Tribunal in dismissing claim. HIS HONOUR JUDGE PETER CLARK Introduction This is an appeal by Mr Dansie, the Claimant before the Watford Employment Tribunal against that Tribunal's judgment, promulgated with reasons on 3 March 2009, dismissing his complaint of sex discrimination and sexual harassment brought against his employer, the Respondent, the Commissioner of Police for the Metropolis. The Facts[2]The Claimant commenced training as a police constable at the Hendon Training Centre on 17 March 2008. Prior to commencing that training he inquired, at an assessment visit, as to whether his hair length would be acceptable to the Force and was told that it would comply with the Force's new Dress Code Policy, the Policy dated 13 April 2005. That Policy, which replaced an earlier Code which was not in terms before the Tribunal stated, among other objectives, that: "The standard of dress should be smart, fit for the purpose and portray a favourable impression of the service." (Quote unchecked)[3]A separate Manager's Guidance on the Dress Code included the following at paragraph 12.3.1:
"Hair must be neat, not allowed to cover the ears and … worn above the collar. For safety reasons, ponytails are not permitted and long hair must be neatly and securely fastened up and worn relatively close to the head."
[4]When the Claimant reported at Hendon his hair, which was shoulder length, was slicked back on his head and tied in a bun on the back of his head.[5]Having commenced the training programme, the Claimant was told to have his hair cut. He was threatened with disciplinary action if he did not comply, which he did in order to avoid such action and removal from the programme.[6]It was common ground that a female recruit would not, in similar circumstances, have been required to have her hair cut.[7]By his form ET1, dated 8 July 2008, the Claimant contended that, in being forced to have his hair cut, he had been unlawfully discriminated against on grounds of his sex in that he had been less favourably treated and suffered detriment contrary to sections 1(2)(a), 2(1) and 6(2)(b) of the Sex Discrimination Act 1975 (SDA) and/or harassed, contrary to sections 4A(1)(a), 4A(5), 4A(6) and 6(2)(a) of the Act. He claimed a declaration and compensation. The Law[8]It is common ground between Counsel that the relevant legal principles applying in the legislation to work dress/appearance codes are to be found principally in the judgment of the Court of Appeal in Smith v Safeway plc [1996] ICR 868, approving the EAT approach in Schmidt v Austich's Bookshops [1978] ICR 85. Smith was considered by the EAT (Keith J presiding) in Department of Work and Pensions v Thompson [2004] IRLR 348 .[9]From that learning, we derive the following principles: first, that a difference in treatment between the sexes on one particular aspect of the Dress Code is not necessarily more favourable treatment of a member of one sex compared with a member of the other sex. In order to determine whether an employer treats members of one sex less favourably than the other it is necessary to consider the Dress Code as a whole, even although a single provision of the Code may upset the balance of treating the sexes equally. A code which applies a conventional standard of appearance is not in and of itself discriminatory; looking at the Code as a whole, neither sex must be treated less favourably as a result of its enforcement.[10]Smith was a hair length case brought by a male Claimant. The Employment Tribunal found no discrimination. The EAT, by a majority, (Pill J dissenting) reversed that Decision. The Court of Appeal allowed the employer's appeal and restored the Tribunal Decision.[11]Thompson considered whether the employer's requirement that men should wear a collar and tie, a requirement not applied to women employees, was unlawfully discriminatory. Keith J summarised the test in this way: the question was whether, applying contemporary standards of conventional dress wear, the employer was asking men to display an equivalent level of smartness to that required of female staff by requiring them to wear a collar and tie. The EAT held that the employment tribunal was wrong to find that requiring one sex to wear clothing not required of the other amounted to less favourable treatment of the first. The employer's appeal was allowed and the case remitted for rehearing by a fresh employment tribunal. The Employment Tribunal Decision[12]The Tribunal found, (paragraph 5) that the Policy was gender neutral, applying an overarching principle that was fully acceptable in law. They reached that finding having directed themselves (paragraph 4) that the law allows that a policy can be considered as a whole and can be gender specific as well as gender neutral provided it is fair-handed between the sexes and fits within the conventions of society and the needs of the profession in question.[13]Having made those findings, the Tribunal then went on to find, in the Claimant's favour, that he had established a prima facie case of unlawful discrimination, applying stage 1 of the Igen v Wong test and thus looked to the Respondent for a non-discriminatory explanation.[14]Whilst the basis of that finding is not immediately clear from paragraph 6 of their reasons, we infer that it was on the basis that the Claimant believed, based on the advice which he had received before going to Hendon, that his hairstyle complied with the Policy.[15]As to the Respondent's explanation, at paragraph 10 the Tribunal conclude that the Respondent would have treated a woman in the same way in a comparable situation, concluding that the treatment complained of, ordering the Claimant to have his hair cut or else he would face disciplinary sanction, was neither less favourable treatment nor treatment on the grounds of his sex. On that basis, they found that the further claim of harassment related to his sex also failed (paragraph 11). There was no conduct amounting to harassment on the grounds of his sex. The Appeal[16]The first challenge raised in the appeal by Mr Dyal is that the Tribunal failed to direct itself in accordance with the correct legal test for determining whether the Claimant received less favourable treatment than an appropriate female comparator on the grounds of his sex.[17]Mr Dyal submits that both Smith and Thompson (to which the Tribunal were referred by Counsel) require that the particular restriction applied to only one sex in a dress/appearance code must be necessary to satisfy the overall aims of that code or policy. He contends that the Tribunal failed to direct themselves to the correct legal test.[18]We disagree. We accept Ms Mayhew's submission that at paragraphs 4 to 5 of their reasons, earlier referred to, the Tribunal do correctly state the test and reach a permissible finding of fact that the guidelines issued by the Respondent to managers in applying the Policy are equally balanced as between the sexes. The Policy, in their view, was fully acceptable in law.[19]Next it is said that the Tribunal found that the relevant officers applied their understanding of the old Policy rather than the new Policy and no findings were made as to the lawfulness of the old Policy.[20]We are not persuaded that there is a true factual basis for that challenge. At paragraph 9 the Tribunal say:
"In coming to their interpretation of the Policy, the Tribunal finds that, in the absence of specific training or instruction, the Respondent officers in this case have mainly applied their understanding of the old Code rather than the revised consideration of the new Code, although the Tribunal accepts that they did seek opinion by telephone from other departments."
[21]Pausing there, it is common ground between Counsel that the evidence before the Tribunal was that the officers at Hendon spoke, among others, to someone who had knowledge of the new Code.[22]We are therefore not satisfied that the Tribunal found as fact that the relevant officers at Hendon only acted on their understanding of the old Policy although we think that the Tribunal took into account that aspect of the evidence in reaching its conclusion that the Claimant had passed stage 1 of the Igen test.[23]The final ground of appeal focuses on the Respondent's acceptance that a female officer would not have been required to have her hair cut on pain of disciplinary action. In a sense, that overlooks the "package" approach sanctioned in Smith . We are satisfied that, directing themselves correctly in law, the Tribunal was entitled to conclude that a female comparator who failed to comply with a gender neutral dress/appearance code necessary for this disciplined service, particularly when on basic training at Hendon, would have been treated in the same way as the Claimant; that is, she would have been required to comply with the Code as it affected her in the same way as the Claimant was required to comply with the Code as it affected him. Having found that the Policy was equally balanced between the sexes, the Tribunal permissibly rejected the Claimant's contention of less favourable treatment on grounds of his sex and dismissed his claims.[24]The key, we think, is the Tribunal's finding of no less favourable treatment. Had they found otherwise, we agree with Mr Dyal that such treatment would, as Ms Mayhew accepts on behalf of the Respondent, have been on grounds of his sex.[25]Finally, as to the complaint of harassment, whilst that claim did not fail on the basis that the treatment complained of is not related to the Claimant's sex, we accept Ms Mayhew's submission that the effect of the Tribunal's findings at paragraph 11 is that they concluded that the conduct complained of did not amount to harassment under section 4A SDA. We see no grounds in law for interfering with that factual finding.[26]In these circumstances, this appeal fails and must be dismissed.