Variation Clauses

[Thanks to Ed McFarlane of EEF for providing this case summary]

The EAT (Silber J) has handed down its decision in Bateman v Asda Stores, which is authority for the proposition that a broad contractual right to alter terms and conditions of employment in line with business needs can, even if contained in a Company Handbook, permit an employer to make unilateral changes to contractual terms, including rates of pay and hours of work, without the need for the express consent of employees, provided that the changes are properly implemented and the employer acts in line with the implied duty to maintain trust and confidence.

The power to amend can extend beyond the right to alter non-contractual policies to cover making changes to terms of the contract without further consent.

On the facts, Asda acted properly in harmonising terms and conditions of employment for a small proportion of staff who refused to agree to a new pay structure.

Constructive Dismissal

[Thanks to Kathleen Donnelly of Henderson Chambers for providing this case summary]

The EAT (Lady Smith) has handed down its decision in Aberdeen City Council v McNeill, which is authority for the proposition that if an employee is in breach of the implied duty of trust and confidence at the time of resignation, he/she is not entitled to terminate the contract on the basis that the employer has breached that term.

On the facts of the case, the EAT held that the Tribunal had failed to consider all of the Claimant's acts of misconduct together, which included sexual harassment, intoxication at work and lying to his employer, and in minimising the seriousness of the Claimant's misconduct the Tribunal had reached a perverse conclusion.

The EAT was particularly critical of the Tribunal's approach to excusing the Claimant's behaviour, including speculation by the Tribunal that a person who seems drunk to one person may be "displaying mere exuberance", and the suggestion that sexual banter is an inherent feature of all friendships. The EAT revoked the judgment of the Tribunal and dismissed the Claimant's claim for constructive dismissal on the basis that the Claimant was himself in material breach of the implied duty of trust and confidence.

Dress Codes and Religious Discrimination

[Thanks to Louise Jones of 1 Temple Gardens for providing this case summary]

The Court of Appeal has ruled in Eweida v British Airways that by adopting a staff dress code which forbade the wearing of a visible neck adornment and so prevented the Appellant, Mrs Eweida, from wearing a small, visible cross with her uniform, British Airways did NOT indirectly discriminate against Mrs Eweida on the grounds of her religion.

The Court of Appeal rejected the submission that one individual person could be the subject of indirect discrimination, and noted that if a solitary employee could be indirectly discriminated against, this could, on a wide view, place an impossible burden on employers to anticipate and provide for what may be parochial or even facetious beliefs in society at large. The Court upheld that, for a finding of indirect discrimination, some identifiable section of a workforce, quite possibly a small one, must be shown to suffer a particular disadvantage which the Claimant shares.

The Court also found that, on the footing on which the claim had been advanced, namely disadvantage to a single individual arising out of her wish to manifest her faith in a particular way, the employment tribunal's findings of fact had shown that BA's staff dress code and the ban on a visible neck adornment, was a proportionate means of achieving a legitimate aim.

Equal Pay

[Thanks to Lionel Stride of 1 Temple Gardens for providing this case summary]

The Court of Appeal has handed down its decision in Gibson v Sheffield City Council, which is the latest case relating to whether or not UK law is consistent with EU law in matters of equal pay.

The Claimants, female care workers, successfully appealed against the Tribunal's decision that the council did not have to show objective justification for a bonus paid predominantly to male manual workers over a 40-year period on the basis that it was due to an historical productivity incentive which could not be applied to care work in the same way. This despite the finding that the bonus scheme predominantly benefited male workers and that care work was stereotypically 'women's work'.

On appeal the council relied upon the Court of Appeal case of Armstrong v Newcastle upon Tyne NHS Hospital Trust [2006] IRLR 124, as authority for the proposition that, once it had been shown that the reason for the bonus was not 'tainted with sex', it was not necessary to show objective justification. The Claimants contended that Armstrong had been wrongly decided and relied upon the ECJ case of Enderby v Fenchay Health Authority [1993] IRLR 591 to argue that, given the evidence of significant disparate impact (and therefore indirect discrimination), the burden should have passed to the employer to show objective justification for the bonus.

The Court of Appeal rejected the claimants' submission that the relevant passages in Armstrong were obiter or per icuriam. However, the Court found unanimously that, on the facts, the burden had shifted to the council to show objective justification in the light of the statistical evidence showing the disparately adverse effect of the scheme on women's work. The matter was therefore remitted to the Tribunal to consider whether the bonus scheme can be objectively justified.

Equal Pay - Potter v North Cumbria NHS Trust

I have received the following announcement from Naomi Ellenbogen and Andrew Clarke QC of Littleton Chambers, which will be of interest to those involved with equal pay litigation and which I reproduce below.

The Judgment of the EAT (Nelson J) in Potter v North Cumbria Acute Hospitals NHS Trust [2009] IRLR 176 has been the subject of an Order by Consent of the Court of Appeal (attached), allowing the appeal by the Appellant Trust which we represented. (Please note that, following the withdrawal of claims by Ms Potter, and a change to the Trust’s name, this appeal is now known as North Cumbria University Hospitals NHS Trust v Fox & Others.) Without any announcement, practitioners in this area might otherwise assume that the EAT’s Judgment is the final word on the relevant issue.

You may recall that Potter/Fox is the leading multiple in the mass NHS equal pay litigation, being litigated in the North East. For the purposes of the particular PHR giving rise to this appeal, the parties had agreed with the Tribunal a list of interrelated preliminary issues, to be determined sequentially, testing the validity of various comparisons as a matter of domestic and European law. These issues had arisen as a result of the identity of the Claimants’ and comparators’ respective employers from time to time and the respective sources of their terms and conditions.

It was common ground between the parties that, for claims which did not fall within the ambit of section 1(6) of the EPA 1970, the Claimants were required to demonstrate that the differences in pay were “attributable to a single source” i.e. a “body which is responsible for the inequality and which could restore equal treatment” (see the ECJ in Allonby v. Accrington & Rossendale College C-256/01 [2004] IRLR 224 at para. 46). In that context, one of the issues to be determined (“B4”) was framed in the following terms:

“If the claimant is employed on Whitley Council terms and conditions and the comparator is employed on local terms and conditions, or vice versa, [whether or not employed by the same employer] do Whitley Council terms and/or the Secretary of State for Health constitute a “single source”?”

Issue B4 therefore raised the closely related questions as to whether either Whitley Councils or the Secretary of State could provide the required “single source” of the terms and conditions of employment of both the Claimant and a particular comparator where:

1. One of the two employees was on Whitley Council terms and the other on local terms; and

2. Either (1) both were employed by the same employer, or (2) each was employed by a different employer.

Issue B4 was entirely overlooked by the ET in its Judgment. Whilst accepting that fact, the EAT held that such omission was immaterial because, at the date of claim, all Claimants were on Whitley Council terms and the relevant comparators either were or had been on such terms at a point in the past. It held that, in accordance with MacCarthys v Smith [1980] IRLR 210, ECJ, historical comparisons were permissible as there is no requirement for contemporaneous employment. In all cases of common employment, the Trust was, as found in the context of an earlier issue, the single source. The EAT’s finding (if any) as to the position where there was no common employment was unclear and/or inconsistent with its earlier findings.

The Trust’s appeal was limited to Issue B4. Before the Court of Appeal (but not below), the Secretary of State for Health was joined as an intervener. Allowing the appeal, the Court of Appeal has made an Order by Consent substituting the EAT’s finding as to issue B4 with an Order that the Trust was not the single source for any of those comparisons in which the Claimant and her comparator(s) were never in common employment.

The explanation which all parties to the appeal put before the Court of Appeal in explaining the form of Order sought, was as follows. On the EAT’s view, Whitley Council was merely the mechanism for determining pay adopted by each Trust rather than the source of the relevant employee’s terms and conditions: the employing Trust was the single source of terms and conditions for the purposes of the comparisons in which such a source was required. The fact that historical comparisons are permissible is irrelevant in this context. A Claimant in the employ of the Appellant Trust can rely, as a comparator, upon employees of that Trust whose employment ceased before hers began. She cannot rely upon employees of a different employer as comparators unless their terms and conditions of employment came from the same source. The fact that their respective terms are derived, in each case, from Whitley Council terms, does not establish that single source, given the EAT’s other findings.

Potter has been the subject of three EAT decisions and will visit the Court of Appeal again in April 2010, on appeal from the EAT (Slade J. [2009] IRLR 900). We therefore thought it might be helpful to identify the particular issues the subject of the attached Order.

DDA and ET1s

[Thanks to Kathleen Donnelly of Henderson Chambers for providing this case summary]

The EAT (Slade J) has handed down its decision in Baker v Metropolitan Police, concerning issues of procedure and approach in a discrimination / victimisation claim. The EAT held as follows:-

• The Tribunal did not err in its finding that the ET1 did not include a claim for disability discrimination. Although a technical approach to the question of whether a particular claim is raised in an ET1 is inappropriate, in this case whilst the Claimant had ticked the box marked "Disability" he did not thereafter make a recognisable complaint of disability discrimination.
• The Tribunal did err in refusing to hear the Claimant's application to amend the ET1, which was made in the course of closing submissions. The lateness of the application was just one factor to be considered and the Tribunal should have considered the balance of injustice to the parties.
• In respect of the approach to the victimisation claim, the Tribunal did not err in introducing characteristics relevant to the reason why the Respondent acted as it did at the comparative stage of the test. In any event the decision to dismiss the victimisation claim was plainly and unarguably right.

Agency Workers

[Thanks to Louise Jones of 1 Temple Gardens for providing this case summary]

The Court of Appeal has handed down its decision in Muschett v HM Prison Service, where the Court considered whether the relationship of the Appellant, an agency worker, with HM Prison Service had developed into that of an 'employee', within the meaning of both section 230(1) of the ERA 1996 and the wider test in discrimination law, in particular that of section 78 of RRA 1976.

Where contractual terms are clear, as they were in this case, by an analysis of the elements of control, personal performance and mutuality of obligation in the work carried out by the Appellant (applying the Court of Appeal's decision in James v LB Greenwich [2007] IRLR 168), there is no need to imply a contract of employment. The application of the ERA test confirmed the Appellant was not an employee.

Further, because the Appellant had no contractual obligation to HM Prison Service to do any work for them, and because there was no contract between him and HM Prison Service, he had no contract for service in the context of section 78 of the RRA 1976: he was not an 'employee' applying the discrimination law test.

Contingency Fees in Employment Tribunals

Some important - and very good - news for Claimants' solicitors...

The Damages Based Agreements Regulations 2010 have now been finalised and come into force on 6th April 2010.

Contingency fee agreements are where the representative charges a percentage of money recovered. This is not the same as a conditional fee agreements, more commonly known as 'no-win, no-fee', where the representative charges a base-fee plus an uplift in the event of success - which is unrelated to the damages recovered.

The Regulations provide that certain formalities must be met in the contingeny fee agreement, otherwise the agreement will be unenforceable and the representative will be unable to recover their percentage.

Importantly the cap on contingency fees, provisionally set at 25% when the consultation paper went out in December, has been increased to 35%. This will come as a huge relief to many advisors who traditionally charge 33%, and who thought the 25% cap would render contingency fee agreements uneconomic. Okay, the 35% includes VAT, but most Claimant solicitors will be able to live with it.

The final draft of the Regulations is not yet on the internet, but it should appear here soon. For what it's worth, the (old) draft Regulations are still available.

Incidentally, the Jackson costs report - published earlier this month - recommended revising contingency fee agreements so that barristers could also enter into them. At the moment, due to a surreal difference of opinion between the SRA (which considers employment litigation to be non-litigious), and the Bar Standards Board (which considers employment litigation to be litigious), only solicitors can enter into contingency fee agreements.

Age Discrimination - ECJ Decision

[Thanks to Kathleen Donnelly of Henderson Chambers for providing this case summary]

The ECJ has handed down its decision in Kücükdeveci v Swedex GmbH & Co, following a reference for a preliminary ruling in respect of a German national provision which provided that in calculating an employee's notice period, all years of service prior to the employee's 25th birthday are disregarded. The ECJ held:

• The German legislation contained a difference of treatment on grounds of age.
• It was a legitimate aim to afford employers greater flexibility in personnel management by alleviating the burden on them in respect of the dismissal of young workers, from whom it is reasonable to expect a greater degree of personal or occupational mobility.
• The legislation adopted was not an appropriate means of achieving that aim, as the extension of the notice period was delayed for all employees who joined the undertaking before the age of 25, even those with long service at the date of dismissal.
• The principle of non-discrimination on grounds of age as given expression by the Equal Treatment Directive 2000/78 must be interpreted as precluding such legislation.
• A national court faced with a national provision which it considers to be incompatible with the principle of non-discrimination on grounds of age must decline to apply that provision.

Illegality

[Thanks to Ed McFarlane of EEF for providing this case summary]

The EAT (Slade J) has handed down its decision in San Ling Chinese Medical Centre v Lian Wei Ji , which is authority for the proposition that a contract of employment is not tainted with illegality merely by circumstances that could lead to a work permit being revoked; actual revocation of a work permit is required.

On the facts, the employee was pressured to reduce her declared salary without varying her work permit. The employer issued two sets of payslips, showing the actual and ostensible pay.

The employee had not colluded in illegality and there was no tax evasion. The test for illegality in the third category in Hall v Woolston Hall Leisure Ltd, where an otherwise lawful contract becomes unlawful in performance, was not met.

The judgment follows a trend of judicial narrowing of the scope of the illegality defence, see bulletins 26th July 2007 and 20th November 2008.

Territorial Jurisdiction

The EAT (HHJ Peter Clark) has handed down its decision in BA v Mak, which is authority for the proposition that 'partly' for the purposes of section 8(1) of the Race Relations Act and Regulation 10(1) of the Age Regulations means more than de minimis.

In considering whether an employee works 'wholly or partly in Great Britain' for the purposes of the above provisions, the proportion of time spent working in Great Britain is not determinative. It is right to look at the nature of the job performed.

The Claimants were cabin crew of Chinese nationality ordinarily resident in Hong Kong. They completed 28 'flight cycles' between Hong Kong and London each year. The Claimants took part in a debriefing session on landing in Great Britain, had duties upon arrival and prior to departure from Great Britain, and underwent training in Great Britain. The EAT considered these activities to be an integral part of each flight cycle.

Moreover, the training requirements were absolutely essential to the industry. The EAT held that the Employment Tribunal was entitled to conclude that the Claimants worked partly at an establishment in Great Britain.

Right to Legal Representation at Disciplinary Hearings

The Court of Appeal has handed down its decision in G v X School, which is authority for the proposition that Article 6 ECHR requires that a claimant should be afforded an opportunity to be legally represented at a disciplinary/appeal hearing where it was determinative of a right to practise a profession.

G was a teaching assistant at X school. An allegation was made that he had had sexual contact with a 15 year-old boy. The school governors conducted a disciplinary hearing and dismissed him, reporting his dismissal to the Independent Safeguarding Authority (ISA) so that it could determine whether he should be placed on a 'barred' list of those unsuitable to work with children. G brought judicial review proceedings, challenging the governors' decisions not to allow him legal representation at a disciplinary or appeal hearing.

The Court of Appeal, following its decision in Kulkarni v Milton Keynes Hospital NHS Trust [2009] IRLR 829 found that (1) the right to practise a profession was a "civil right or obligation", (2) an ISA listing would fundamentally limit G's ability to practise his profession and (3) the school's internal process would have a "substantial influence or effect" on the decision-making of the ISA. G was therefore entitled to legal representation at the disciplinary and appeal hearings.

Whistleblowing Cases: Important Change

[This bulletin reproduces, with permission of the editors, the text of an update from www.emplaw.co.uk]

The Department for Business, Innovation and Skills has clarified its proposals to give employment tribunals the power to pass on whistleblowing (Public Interest Disclosure Act 1998) allegations arising during claims to a prescribed regulator.

For claims (or amended claims) arising on or after 6 April 2010, a number of changes will be put into place:

• the tribunal claim form (ET1) is to be amended so that claimants will be invited to tick a box, indicating whether their claim includes allegations of a protected disclosure and, if so, that they wish the tribunal to refer the allegations on;
  
  
• where this box is ticked and the tribunal identifies a protected disclosure, will the information be passed on to one or more relevant authorities on a prescribed list;
  
  
• the Tribunal Rules of Procedure 2004, will be amended to allow for such disclosure of otherwise privileged information;
  
  
• both parties to the tribunal proceedings will be contacted in writing by the tribunal to confirm that a relevant authority has been contacted and that a copy of the ET1 (or relevant extracts) has been disclosed.

During the consultation phase, the concern was raised that empowering the employment tribunal service to forward details of claims involving PIDA allegations to the "relevant regulator" if the claimant consents, as proposed, would give whistleblowing claimants "improper bargaining power". The Employment Lawyers' Association pointed out that this could be used by claimants as "leverage to get a higher financial settlement than they would otherwise expect", in return for not pursuing a serious allegation. It could also mean that serious claims of corruption would never reach the regulator.

The government response document includes, at Annex A, draft Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2010.

Paid Holiday: Loss of Entitlement

The EAT (HHJ Ansell) has handed down its decision in Lyons v Mitie Security, which is authority for the proposition that the right to statutory leave in Regulation 13 of the Working Time Regulations is not inalienable; statutory or contractual notice requirements could correctly operate so as to result in the loss of the right to leave at the end of the year leave in respect of leave not taken.

Considering Regulations 13, 15 and 17 of the WTR (the right to leave and the position on notice requirements for leave), the EAT asked whether an employer is legally obliged to permit an employee to take all of his paid leave within the leave year, even if the leave is requested towards the end of the leave year when it may not fit with the staffing patterns of the business. Noting the absence of case law, the EAT was satisfied that the right to statutory leave has been made subject to notice provisions, and thus the loss of leave at the end of the leave year could follow.

Acas Pre-Claim Conciliation Service

I have been asked by Acas to send out the following information to practitioners...


The Dispute Resolution Review published in 2007 highlighted the need for services to help employers and employees resolve disputes quickly and effectively without the need to go through formal tribunal procedures.

As a result, Acas expanded its Pre Claim Conciliation Service nationally from April 2009. Initially the service was mainly restricted to unfair dismissal and discrimination cases, but from October 2009 the service was extended to all ET jurisdictions for which Acas has the power to conciliate.

To access this service, the individual, the employer or their representative simply rings the Acas helpline on 08457 474747. In simple terms, if internal efforts (such as disciplinary and grievance procedures) to resolve the dispute have been attempted without success, the dispute is likely to end in a formal ET claim (but no claim has yet been made) and there appears to be an entitlement to bring such a claim, outline details of the dispute will be passed to a conciliator who will quickly contact the parties to offer Acas' help.

To date (end December 2009) there have been over 6000 referrals from the Helpline to Acas conciliators, with around 40% of appropriate referrals resolved. Significantly, these cases are resolved quickly - the median duration of cases by calendar days is for Fast Track (mainly wages) 10 days, for Standard Track (primarily unfair dismissal) 17 days and for Open Track (discrimination) 19.

If conciliation fails for whatever reason, the individual retains their right to enter a formal complaint to the ET should they so choose, at which point Acas conciliation would again be made available. However, our experience shows that a significant number do not pursue ET claims, possibly at least in part because of the information they have received during the PCC process and the opportunity this has given to explore both sides of their dispute in more depth.

More information, including the leaflet Pre Claim Conciliation Explained can be found on the Acas website.

DDA - Meaning of 'Long-term'

The EAT has handed down its decision in Patel v Oldham MBC, which is authority for the proposition that in determining whether the effects of an impairment are long-term for the purposes of the DDA 1995 Schedule 1 paragraph 2, the effect of an illness likely to develop or which has developed from another illness forms part of the assessment of whether the effect of the original impairment is likely to last or has lasted at least 12 months.

The Appellant suffered from myelitis (back pain) which developed into a secondary myofacial pain syndrome (leg pain). The Tribunal dismissed a DDA claim determining that the duration of the effects of these two impairments could not be aggregated in order to reachthe conclusion that they were long-term. Allowing the appeal, Slade J determined that the Tribunal had erred in failing to consider whether the secondary myofacial pain syndrome had developed from the Appellant's myelitis and remitted the matter for reconsideration.

Age Discrimination: ECJ Decisions

The ECJ has handed down judgment in two cases concerning the justification of difference of treatment on grounds of age: Wolf v Stadt Frankfurt am Main, on the interpretation of Article 4 (Occupational Requirements) of the Equal Treatment Framework Directive and Petersen v Berufungsausschusss fuer Zahnaertze fuer den Bezirk Westfalen-Lippe on the interpretation of Article 6 (Justification of differences of treatment on grounds of age).

Genuine Occupational Requirements

Mr Wolf applied to work as a fireman in the Federal State of Hesse, Germany. However his application was not considered because local regulations provided that recruitment to intermediate career posts in the fire-service (which involved fire-fighting on the ground and rescuing people) was not open to anyone over 30.

The ECJ held that the German Government's objective of ensuring the operational capacity and proper functioning of the professional fire service was a legitimate objective within Article 4(1).

The ECJ held that the maximum recruitment age was proportionate to its aims. The ECJ took into consideration that fire-fighters had to complete a two year training programme, and that an individual recruited before the age of 30 would ordinarily be able to complete the physically demanding role of a fire-fighter for at least 15 or 20 years. However, if the fire-service recruited older applicants, then the fire-service might be short of officials who could complete the most physically demanding duties or who could complete these duties for a sufficiently long period.

As the ECJ found that the difference in treatment on the grounds of age was justified under Article 4(1), it did not go on to consider justification under Article 6(1).

Justification under Article 6

In Petersen, the ECJ was asked to determine whether German legislation which introduced a maximum age of 68 for doctors and dentists practising on panels within the German national health system (which covers 90% of patients) could be justified. This rule was said to protect the health of patients, since it was thought that the performance of doctors and dentists declined from age 68 onwards. The ECJ held that, because dentists who practised outside the panel system were not bound by the rule, it was not necessary to achieve the protection of public health and could not be justified under either Article 2(5) or Article 6(1).

However the ECJ held that the distribution of employment opportunities among the generations could be a legitimate objective within Article 6(1). The ECJ held that the question of whether the measure was appropriate and necessary would depend on the local labour market, and whether there was in fact an excessive number of panel dentists or a latent risk that this would occur.

Risk Assessments for Pregnant Workers

In O'Neill v Buckinghamshire County Council, the EAT holds that, for an employer to fall under a duty to conduct a risk assessment for a pregnant worker, these preconditions must be met:

(a) the employee notifies the employer in writing that she is pregnant;

(b) the work is of a kind which could involve a risk of harm or danger to the health and safety of the expectant mother or her baby;

(c) the risk arises from either processes, working conditions or physical, chemical or biological agents in the workplace.

There is no more general obligation to carry out a risk assessment for a pregnant worker. In discharging its risk assessment obligations, where they arise, there is nothing in either the Pregnant Workers Directive or the Management of Health and Safety at Work Regulations 1999 to indicate that a meeting with the worker is required before the obligation to carry out a risk assessment is satisfied. But an employer must provide her with comprehensive and relevant information on the identified risks to her health and safety.

The EAT also provides tentative support for the proposition first adopted by the EAT in Hardman v. Mallon [2002] IRLR 516 and considered in Madarassy v Nomura [2007] IRLR 246, that, if an obligation to carry out a risk assessment, and a failure to carry out that risk assessment is established, then discrimination results.

Proof of detriment is not necessary. Employers, accordingly, need to be astute to carrying out risk assessments where the preconditions are met.

EAT Rules Simultaneous Employment is Permissible

The EAT (Silber J) has handed down its decision in Prison Officers Association v Gough, reaffirming that an individual can at the same time have two jobs with two different employers, provided the jobs are compatible with each other.

Silber J upheld the decision of the employment judge that the individuals concerned could be employees of both the Prison Service and the Prison Officers Association.

It was proper to apply the test as set out in 102 Social Club & Institute Ltd v Bickerton [1977] ICR 911 to the individuals work as officials with the POA, examining such factors as the nature of the payment made to them and what functions are being exercised, and the employment judge had made no error of law in finding the individuals to be employees of the POA, as well as of the Prison Service.

Dress Codes

The EAT (HHJ Peter Clark) has handed down its decision in Dansie v Metropolitan Police, which is authority for the proposition that requiring a male employee to cut his shoulder-length hair did not amount to discrimination or harassment under the SDA simply because a female employee would not, in similar circumstances, have been required to cut her hair, provided that the overall Dress Code was equally balanced between the sexes.

In upholding the Tribunal's decision, the EAT confirmed that the correct legal test is whether, applying contemporary standards and conventions, as well as the specific needs of the profession in question, the employer's dress code as a whole was asking its employees to display an equivalent level of smartness as between the sexes: as per Smith v Safeway Plc [1996] ICR 868 and DWP v Thompson [2004] IRLR 348. Accordingly, as the Dress Code of the Metropolitan Police was, overall, equally balanced between the sexes, they had not discriminated against Mr. Dansie, a trainee, by requiring him to cut his hair.

The EAT was satisfied that the Tribunal had been entitled to find on the evidence that a female recruit who failed to comply with the gender neutral dress/appearance code necessary for the service would have been treated in the same way.