Ordering police trainee to cut his hair was not sex discrimination, tribunal rules

A Mr A Dansie entered training for London's Metropolitan Police Force in 2008. He was told to have his shoulder-length hair cut on pain of disciplinary action. He reluctantly had it cut to avoid removal from the training programme.

He then filed a case claiming that he had been unlawfully discriminated against on the grounds of his sex because a female officer would have been allowed to keep hair of that length.

The EAT agreed with the original Employment Tribunal ruling that this interpretation was not right, and that an employer's dress code must be taken as a whole when considering if it was discriminatory, and not analysed on a single issue basis.

"The Tribunal found that the Policy was gender neutral, applying an overarching principle that was fully acceptable in law," said the EAT, summarising the original Tribunal ruling. "They reached that finding having directed themselves 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."

"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," said the EAT ruling.

"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. The key, we think, is the Tribunal's finding of no less favourable treatment. Had they found otherwise, we agree with [Dansie's lawyer] that such treatment would, as Ms Mayhew accepts on behalf of the [Met Police], have been on grounds of his sex," it said.

Employment law expert Michael Ryley of Pinsent Masons, the law firm behind OUT-LAW.COM, said that the ruling was right to distinguish between overall fairness and exactly identical treatment.

"This is a sensible decision," he said. "The problem of a man saying that it is discrimination to get him to cut his hair when a woman would not be forced to is a crude analysis that people might be tempted to follow."

"What this ruling is saying is that it's not really a relevant comparison. 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. This says that if an employer takes a proportionate response and treats men and women the same within that context it is not sex discrimination."

Ryley said, though, that while the ruling ensures that the law takes social context into account, this also has implications for what policies an employer can enforce in other situations.

"If people were working in a warehouse where there was no front-of-house element at all and customers do not see them and a man was ordered to wear his hair in a conventionally smart way then it might be more difficult for the employer to argue that he had a properly balanced dress code," said Ryley

"The crude analysis is that sex discrimination law obliges you to treat men and women the same," he said. "That is not the case. It obliges you to adopt a fair-minded approach which doesn't discriminate against one gender or the other."