When sex discrimination is mentioned, most people immediately think of the discriminating conduct being against a women. Statistically this is usually true as the majority of sex discrimination claims heard before the employment tribunal are brought by women.
However, there can be instances when men can be discriminated against on the grounds of their sex and this month a Northern Irish tribunal claim of Downey v McCreery & Chief Constable of PSNI. Gordon Downey, was a member of the armed response team for the Northern Irish police. The armed response team introduced a PCP of having officers wear respiratory PPE in the even of smoke, gas or other chemical contaminates at call outs.
A requirement of the policy was that all officers had to have hair cut or secured above the collar, including facial hair. This was so that hair would not interfere with the seal of the PPE, allowing hazardous material to filter in.
Mr Downey had a long beard. He shaved his beard but kept a moustache. The PPE was tested and the moustache did not interfere. Although pictorial evidence was not provided in the case summary, a moustache is also presumably above a person’s collar.
Mr Downey’s superior ordered him to shave the moustache regardless. He refused and was subsequently transferred out of the armed response unit. Mr Downey brought a sex discrimination claim. His comparators were two female officers who had long hair that was not cut or secured above the collar. When the PPE was worn they would tie their hair into a pony tail. This was below the collar and also presented a pull hazard when confronting violent suspects.
Neither female comparator was made to cut their hair. Neither female comparator was transferred out of the armed response unit for breaching the policy. The tribunal agreed and the PSNI was ordered to pay Mr Downey over £10,000 in damages for injury to feeling and lost overtime as part of the unit.
Whilst this case is Northern Irish and uses different legislation – Sex Discrimination (NI) Order 1976 – to England and Wales, the principle for the Equality Act is the same. If there is no justification for treating a person of a certain sex differently, the conduct will be discriminatory.