Case 4102476/2017 · Employment Tribunal
Members: Mrs J Ward Mr A McFarlane Mr M Blackie v The Chief Constable of the Police — 2019
- Case reference
- 4102476/2017
- Decision date
- 12 February 2019
- Jurisdiction
- Scotland
- Judge
- Employment Judge Mary Kearns
- Venue
- Glasgow
- Panel members
- Mrs J Ward, Mr A McFarlane
Parties
2 namedClaimant
Members: Mrs J Ward Mr A McFarlane Mr M Blackie
Respondent
Key findings
Tribunal's reasoningThe claimant was a police constable from 5 January 2004 until his resignation on notice in March 2017, with his last day of service on 2 April 2017. The tribunal first dismissed the constructive unfair dismissal claim on a preliminary issue because section 200 ERA 1996 excludes police officers from the ordinary unfair dismissal regime in Part X, subject only to exceptions that did not apply. The tribunal said the authorities relied on by the claimant did not alter that position, and it allowed evidence relevant to discrimination to be led notwithstanding the dismissal of the unfair dismissal claim.
On direct sex discrimination, the tribunal found that the claimant had been moved from restricted duties into a temporary supernumerary Engine Room post, whereas PC McColl was the incumbent in a permanent post. It held that the circumstances were materially different, so her post was not a valid comparator for a section 13 EqA analysis. The tribunal also rejected the complaint that Inspector Bryans' handling of the flexible working application or her manner towards the claimant amounted to sex discrimination. It found the application was effectively a request to work Monday to Friday day shifts in a response role, which was not operationally feasible, and it concluded that the decisions were taken for operational and staffing reasons rather than because of the claimant's sex.
On indirect sex discrimination, the tribunal identified the relevant provision, criterion or practice as the requirement to work the Group 2 variable shift arrangement. It accepted that the PCP applied to male and female officers, but held that the claimant had not established the necessary group disadvantage: he had not shown that men, or male single parents, were put at a particular disadvantage compared with women. The tribunal noted that Police Scotland had sent him a number of vacancies, many of which were day-shift or mainly day-shift roles, and had assisted him with applications, but he had not applied for most of them. It therefore dismissed the indirect discrimination claim as well, and no monetary award was made.
Claims and outcomes
3 findings recorded| Claim type | Issue or finding | Outcome | Protected characteristic | Award |
|---|---|---|---|---|
| Constructive dismissal | The tribunal held that it had no jurisdiction to hear the constructive unfair dismissal claim because section 200 ERA 1996 excludes police officers from Part X, save for the limited exceptions that did not apply here. The claimant relied on Baillon v Gwent Police and P (Appellant) v Commissioner of Police of the Metropolis, but the tribunal held that neither assisted him. | Dismissed | — | — |
| Sex discrimination | The tribunal rejected the direct sex discrimination claim in relation to the refusal to move PC McColl from her permanent Engine Room post and in relation to the handling of the claimant's flexible working application. It held that PC McColl was not in materially similar circumstances because she was the incumbent in a permanent post, whereas the claimant had been placed in a temporary supernumerary role, and it found no basis for concluding that any less favourable treatment was because of sex. | Dismissed | Sex | — |
| Sex discrimination | The tribunal treated the claimant's indirect discrimination case as a challenge to the requirement that he work the Group 2 variable shift arrangement. It held that although the PCP applied to men and women, the claimant had not shown that men, or male single parents, were put at a particular disadvantage compared with women, and the evidence did not establish the required sex-based disadvantage. | Dismissed | Sex | — |
Legal tests applied
6 references- s.200 ERA 1996
- s.13 EqA 2010
- s.19 EqA 2010
- s.23(1) EqA 2010
- s.136 EqA 2010
- London Underground v Edwards (No 2)
Official outcome judgment PDF
Gov.uk primary recordThe official judgment PDF on gov.uk contains the tribunal's outcome, reasoning, and any remedy details. Where this page does not yet show extracted outcomes for every claim, use the PDF as the authoritative source.
Published on gov.uk under the Open Government Licence v3.0.
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