Chief Constable of West Yorkshire Police v A (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kennedy,Lord Justice Buxton,Lord Justice Keene |
| Judgment Date | 05 November 2002 |
| Neutral Citation | [2002] EWCA Civ 1584 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A1/2001/2397 |
| Date | 05 November 2002 |
[2002] EWCA Civ 1584
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Kennedy
Lord Justice Buxton and
Lord Justice Keene
Case No: A1/2001/2397
Ms Laura Cox QC and Ms Stephanie Harrison (instructed by David Burgess, Winstanley Burgess, City Road, London) for the Appellant
Mr David Bean QC and Mr David Jones (instructed by West Yorkshire Police Solicitors) for the Respondent (1)
Mr Rabinder Singh QC (instructed by Treasury Solicitor) for the Secretary of State for Trade & Industry as Respondent (2) and Intervener.
This is an appeal and a cross-appeal from a decision of the Employment Appeal Tribunal which on 2 nd October 2001 allowed the appeal of the Chief Constable from a decision of the Employment Tribunal sitting at Leeds, and remitted the matter to the same Employment Tribunal for re-hearing.
History.
The appellant is a male to female transsexual. She was registered as male at birth, but in May 1996 underwent gender re-assignment surgery. She changed her identity, moved to a different location, and made new friends who were unaware of her medical history and status. That was considered to be essential to enable her to socialise and become accepted in her community, which was of great importance if her treatment was to have a successful outcome.
On 4 th January 1997 the appellant applied to become a police constable in the West Yorkshire Police. In a covering letter she raised the question as to whether there would be any problem in a transsexual carrying out searches. She received a reply indicating that the police had considered the point she raised, and were happy to give further consideration to her application. She was assessed and tested in the normal way, and was told that she was successful at each stage. References were taken up, and then on 9 th March 1998 she received a letter from the Assistant Chief Constable which stated that since the time of her application the issue of transsexual applicants had been further considered, and it had been decided "that transsexuals will not be appointed to the Force". The letter went on to explain the reason for the decision namely —
"Candidates will not be appointed unless they are capable of performing the full duties of a Police Constable. Unfortunately, as you are already aware, legislation affects the carrying out of searches on persons in custody by transsexuals and, therefore, you would not be able to undertake full duties."
The appellant alleged that she had been discriminated against on the grounds of sex, and in a letter dated 30 th April 1998 the police accepted that they did discriminate against her on the grounds of her transsexuality, but asserted that the discrimination was not unlawful.
On 12 th May 1998 the appellant began these proceedings by submitting her application to the Employment Tribunal complaining of sex discrimination. On 10 th September 1998 she applied to the Employment Tribunal for and obtained an order that "nothing shall be done by way of publication in any newspaper, periodical or other publication or in any media broadcast or transmission to identify the applicant or which is likely to lead members of the public to identify her as the person affected by the subject matter of these proceedings." On 21 st September 1998 the Tribunal gave its reasons for making the order, which in paragraph 3 gives a description of the appellant's history since being diagnosed transsexual. I have drawn on that paragraph earlier in this judgment, and part of it reads —
"Her ability to find employment, make relationships and integrate with the wider community so that she can live a full life, depends very much on her personal medical details remaining confidential. The social and personal relationships formed since moving to her new community have allowed her to live a normal life as a woman, without fear of assault, abuse or damage to her home and possessions. It has taken her a number of years to get to know people, form friendships, become accepted and valued within the community and to have the confidence to participate in local functions and charity events."
The Tribunal's decision goes on to refer to examples of unpleasant media attention directed at transsexuals, and then refers to the appellant's efforts to prevent disclosure of her identity in these proceedings because "she was concerned that such disclosure might lead to unwarranted attention affecting her private and personal life."
Before the Employment Tribunal
Over a period of four days in February 1999 the Employment Tribunal, with the same chairman, heard the appellant's complaint. The Chief Constable admitted that he had discriminated against the appellant on the ground that she had undergone gender re-assignment, but contended that legally she was male although she presented as a female. The Chief Constable contended that in that situation she would not be able to carry out the full range of policing functions required of a police officer. He contended that conformity of legal and apparent gender was, in the words of section 7 of the Sex Discrimination Act 1975 "a genuine occupational qualification" for that job. For the appellant it was argued that such conformity was not a genuine occupational qualification within the meaning of the section, and if it was then the Chief Constable could make other arrangements without undue inconvenience to accommodate the appellant.
The relevant part of section 7 reads —
"(1) in relation to sex discrimination —
(a) section 6(1) …. (c) [which renders it unlawful to discriminate by refusing to offer employment] does not apply to any employment where being a man is a genuine occupational qualification for the job …..
(2) being a man is a genuine occupational qualification for a job only where —
(b) the job needs to be held by a man to preserve decency or privacy because —
(i) it is likely to involve physical contact with men in circumstances where they might reasonably object to its being carried out by a woman, or
(ii) the holder of the job is likely to do his work in circumstances where men might reasonably object to the presence of a woman because they are in a state of undress or are using sanitary facilities.
(3)
(iv) paragraph … (b) … of sub section (ii) does not apply in relation to the filling of a vacancy at a time when the employer already has male employees —
(a) who are capable of carrying out the duties falling within that paragraph, and
(b) whom it would be reasonable to employ on those duties, and
(c) whose numbers are sufficient to meet the employer's likely requirements in respect of those duties without undue inconvenience."
Section 2 of the 1975 Act provides that the provisions relating to sex discrimination against women are to be read as applying equally to the treatment of men, and for that purpose have effect with such modifications as are requisite. It follows that if this were a case of a man other than a transsexual alleging discrimination against him in circumstances where discrimination was admitted but section 7 was relied upon the word "man" would have to be replaced by the word "woman" in those parts of the section which I have quoted.
Having given careful consideration to the evidence presented to it, the Employment Tribunal in its decision of 8 th March 1999 found "that searching is an intergral part of being a police constable" and further "that it would objectively be unreasonable to require the (Chief Constable) to employ the (appellant) as a police constable if in law and fact she could not carry out the full range of a police constable's duties".
The Employment Tribunal then examined the relevant statutory and case law material, including section 54(9) of the Police and Criminal Evidence Act 1984 which has been in the forefront of the submissions made to us on behalf of the Chief Constable and which, under the section heading "Searches of Detained Persons" reads —
"(9) the constable carrying out a search shall be of the same sex as the person searched".
For the Chief Constable it was argued that failure to comply with that obligation would give rise to serious consequences, and that as the appellant was still legally a man she could not take part in searching women. In relation to section 7(2)(b) there was evidence from a senior police officer that "a Muslim woman prisoner assisted with shower or toilet facilities by a transsexual would be offended if she discovered that the officer in question was such". The Employment Tribunal recorded that evidence, and continued–
"We accept that and acknowledge that there are many people in our society who would have religious, cultural or moral objections to being searched by a transsexual. While respecting those objections we do not think that they are contemplated by the expression 'might reasonably object'. Instead we think that is a reflection of the embarrassment which many people feel in the circumstances outlined in section 7(2)(b). It is embarrassment to which Code A makes express reference. Given the application of the principle of equal treatment, we cannot see that there is any obligation upon the (Chief Constable) to disclose to anyone that the (appellant) is transsexual. The (Chief Constable) employs a transsexual as a civilian worker. It would be a violation of her right for the (Chief Constable) to disclose that she is a transsexual. For it would expose her to curiosity and...
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