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Long-haired trainee policeman loses sex discrimination claim

12 January 2010

A male trainee police officer who was ordered to cut his hair or face disciplinary action was not a victim of sex discrimination, the EAT has ruled.

The man appeared at Hendon training centre with shoulder-length hair slicked back on his head and tied at the back in a bun.

When ordered to cut his hair or face disciplinary action, he got his hair cut but claimed that he had been unlawfully discriminated against under the Sex Discrimination Act 1975.

Delivering judgment in Dansie v Met Police Commissioner [2009] UKEAT/0234/09, Judge Peter Clark said it was common ground that a female recruit would not, in the same circumstances, have been required to get her hair cut.

He said that case law showed that a difference in treatment between the sexes on one particular aspect of a dress code did not necessarily amount to “more favourable” treatment.

“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,” he said.

“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.”

Judge Clark said that the argument that a female officer would not have been able to get her hair cut on pain of disciplinary action overlooked the “package” approach sanctioned by the case law.

“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,” he said.

“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.”

Judge Clark said the key was the tribunal’s finding that there had not been less favourable treatment. Had it found otherwise, he agreed that such treatment would have been on the grounds of sex.

He said there were also no grounds for the EAT to interfere with the tribunal’s finding of fact that there had been no sexual harassment.

Michael Ryley, head of employment at Pinsent Masons in London, described the EAT ruling as “sensible” and said it was right to distinguish between overall fairness and exactly identical treatment.

“In an environment where people need to look smart in a traditional sense it might be appropriate for a woman to wear long hair but not a man,” he said.

However, Ryley said that employers might find it more difficult to argue that male staff working in a warehouse must have short hair, as there was no front-of-house element and customers did not see them.

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