Downey vs Garrath McCreery,Chief Constable of the Police
| Jurisdiction | Northern Ireland |
| Judgment Date | 02 October 2019 |
| Docket Number | 04182/18IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Garrath McCreery,Chief Constable of the Police |
THE INDUSTRIAL TRIBUNALS
CASE REF: 4182/18
CLAIMANT: Gordon Thomas Downey
RESPONDENTS: 1. Garrath McCreery
2. Chief Constable of the Police Service
of Northern Ireland
Certificate of Correction
The decision issued on 2nd October 2019 at the opening paragraph which reads;
“The claimant’s claims of direct discrimination, in respect of the enforcement of the CAPES policy, is well founded against the second respondent.”
is corrected to read;
“The claimant’s claim of direct discrimination, in respect of the enforcement of the CAPES policy, is well founded against the second respondent.”
Employment Judge:_____________________________
Date: __________________________________________
Amendments recorded in Register and issued to the parties on:
THE INDUSTRIAL TRIBUNALS
CASE REF: 4182/18
CLAIMANT: Gordon Thomas Downey
RESPONDENTS: 1. Garrath McCreery
2. Chief Constable of the Police Service of Northern Ireland
DECISION
The unanimous decision of the tribunal is that the claimant was discriminated against contrary to the Sex Discrimination (Northern Ireland) Order 1976. The claimant’s claims of direct discrimination, in respect of the enforcement of the CAPES policy, is well founded against the second respondent. The claimant’s claim of direct discrimination against the first respondent is dismissed. The claimant’s claim of indirect discrimination, in relation to the promulgation of the policy, is well founded against the second respondent. The claimant’s claim of indirect discrimination against the first respondent is dismissed. The claimant’s claim of victimisation against both respondents is not well founded and is dismissed. A declaration and recommendation is made as set out in this decision.
CONSTITUTION OF TRIBUNAL
Employment Judge: Employment Judge Gamble
Members: Mr T Carlin
Mr E Gilmartin
APPEARANCES:
The claimant was represented by Mr N Phillips, of counsel, instructed by Worthingtons Solicitors.
The respondents were represented by Miss R Best, of counsel, instructed by the Crown Solicitor’s Office.
BACKGROUND
- The following background is common case between the parties. The claimant is a Constable in the Police Service of Northern Ireland (PSNI) and is attached to the Armed Response Unit (ARU). The claimant has extensive experience within the PSNI, having joined the former RUC in November 1995. The ARU is an elite unit within the PSNI and responds in situations where lethal force or potentially lethal force could potentially be used
- On 7 January 2018 the Uniform and Protective Measures Committee (UPMC) within the PSNI introduced a policy which revised and set out certain minimum standards for dress and appearance within the PSNI. It also identified equipment to be worn in compliance with health and safety legislation. This policy was entitled the Corporate Appearance and Protective Equipment Standard (CAPES). On 7 January 2018 PSNI published the CAPES policy, which included a new policy on facial hair. Assistant Chief Constable Gray’s email, which circulated the new policy to all staff, stated the primary policy aim, which was “protecting Officers and staff who wear Respiratory Protection Equipment (RPE) on a regular basis. This relates solely to officers in certain specialised roles and has been subject to robust consultation with PSNI internal stakeholders including Health & Safety Branch, Equality & Diversity Unit and Police Federation for NI.”
- Section 1.3 of CAPES included: “Some police officers/police staff occupy roles where there is routine respiratory exposure to occupational hazards. These officers/staff members may be required to wear Respiratory Protection Equipment (RPE) at short notice and must therefore always remain clean shaven whilst on duty.” This was the iteration of the CAPES policy at the relevant time when the actions which are the subject matter of the claimant’s complaint occurred. (Tribunal’s emphasis.)
- On or around 20 February 2018 the wording at section 1.3 was revised as follows: “Some police officers/police staff occupy roles where there is a routine possibility of respiratory exposure to occupational hazards. These officers/staff members may be required to wear Respiratory Protection Equipment (RPE) at short notice and must therefore always remain clean shaven whilst on duty.” (Tribunal’s emphasis.) However, by this time the claimant had already been advised that he was to be transferred out from his unit on the basis of the application of the original iteration of CAPES policy to him
- The claimant and his colleagues within the ARU had been issued with Respiratory Protection Equipment (RPE) in the form of an Avon FM12/S10 respirator some years before the promulgation of the CAPES policy, but the claimant, and a number of his witnesses, maintained that he had not been trained in the use of RPE by PSNI, that he did not carry RPE and that he had never been required to deploy whilst using RPE at any time in the past. The FM12 is a “full-face” type respirator which provides protection against a range of risks including chemical, biological, radiological and nuclear (CBRN) and CS gas (depending on canister used)
- FM12 full face type respirators are not the only form of RPE deployed by the PSNI. The claimant’s uncontroverted evidence was that at the time of the introduction of the CAPES policy and the consequent action, which gave rise to his complaint to the tribunal, neither he nor other members of his unit had been supplied with half face FPP3 particulate filters. The ARU was one of a number of specialist units which the PSNI deemed to be subject to the RPE provisions of section 1.3 of the CAPES policy, requiring officers to be clean shaven.
- Prior to December 2017 the claimant wore a beard. In anticipation of the introduction of the new policy the claimant shaved off his beard and retained a moustache.
- It is a recognised health and safety requirement that users of RPE require to be tested periodically to ensure that the RPE functions as intended on the individual wearer. This testing is referred to as “porta-counting” or “fit testing”. The claimant was porta-counted in respect of his FM12 respirator on 11 December 2017, whilst wearing his moustache, and passed. This is...
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