Veitch Penny LLP - Exeter | Crediton, Devon

Case

Chief Constable of the Bedfordshire Constabulary -v- Graham

Issues

(1) Sex discrimination - married female officer applying for similar job to husband
(2) Indirect discrimination on grounds of sex and marital status
(3) Direct sex discrimination on grounds of marital status
(4) Sex Discrimination Act 1975 Sections 1 and 3

Facts

Ms Graham was an Inspector with the Bedfordshire Police Force and was married to a Divisional Commander in the same Force.

In May 1999 she successfully applied for the post of Area Inspector in the same Division but in June the appointment was rescinded by the Chief Constable for the following reasons:-

a) As her husband was a Senior Officer in the same Division she would not be a competent and compellable witness against him in any criminal proceedings

b) The Officers in her Division might find it difficult to make any complaints against her because of her relationship with the Divisional Commander

c) It would be more difficult to deal with any future problems of under-performance by her.

She subsequently lodged an IT1 application in September 1999 claiming that she had been discriminated against directly and indirectly on the grounds of her sex and marital status in breach of the Sex Discrimination Act 1975.

The Employment Tribunal dismissed her allegation of direct discrimination on the basis that a man would have been treated in the same way. However, the Tribunal found that she had been indirectly discriminated against both sexually and on account of her marital status.

The Chief Constable appealed claiming that the ET had failed to identify the conditional requirement which had been applied to her and had selected the wrong pool for comparison purposes. The Tribunal had failed to give full reasons for its decision that the Bedford Police Force's policy on married persons was not justified and there was no discrimination on the grounds of marital status, as the job offer had not been rescinded on account of the fact that the Applicant was married, but rather because of the post occupied by the person she was married to.

Decision

The EAT dismissed the Chief Constable's appeal on the following grounds:-

(i) With regard to the finding of indirect discrimination on the Chief Constable's part on the grounds of her sex, it was held that the Tribunal was entitled to conclude that a policy, which restricted persons in relationships from working together, was more likely to affect female officers than male officers as on the facts a greater percentage of women in the relevant Police Force were in relationships with men from the same Force than the other way round.

It also held that the Tribunal was entitled to conclude that the whole of the Bedfordshire Police Force was the correct pool to select, not simply those eligible for the post, as the whole of the workforce was potentially affected by this policy .

(ii) The EAT felt that the Tribunal had given full and adequate reasons for its conclusion or justification quoting from the case in Meek -v- City of Birmingham District Council (1987):- "the decision of the Tribunal was not required to be an elaborate or formalistic product of refined legal draughtsmanship but it must contain an outline of the story %u2026. and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach their conclusion %u2026. there should be sufficient account of the facts and the reasoning to enable %u2026. on appeal %u2026. to see whether any question of law arises".

(iii) With regard to the finding of the Tribunal that the Chief Constable had directly and indirectly discriminated on grounds of marriage they found it was clear that the decision to rescind her appointment was based on the fact of her marriage and that his first and primary reason for the rescinding was that "she would not be a competent and compellable witness against her spouse in any criminal proceedings". In addition to this a percentage of married female officers who could comply with the condition was considerably smaller than the percentage of unmarried female officers who could comply with it.

Comments

This case highlights the difficulties that arise in employers making decisions, such as the one here, to rescind any such appointments which may seemingly follow the criteria set out under such policies, but may, on a closer analysis fall foul of the Sexual Discrimination Act 1975.


Peter Taylor : 3010/02