Chief Constable Of Hampshire Constabulary v Haque

Disadvantage suffered during maternity leave is not automatically direct sex discrimination. A claim under section 1 of the Sex Discrimination Act 1975 requires both less favourable treatment and treatment on the ground of sex. The tribunal must determine the reason why the employer acted as it did. Unfairness, unreasonableness or interference with maternity leave does not itself answer that question.

Fletcher concerned the absence of a male comparator and whether there was detriment; it did not remove the need to establish the ground of treatment. Employment tribunals must identify the issues, state the applicable law, make relevant findings of fact and explain how the law was applied. A judgment saying only that it had regard to authorities is inadequate. The appeal was allowed and the relevant claims were remitted to a fresh tribunal.

The respondent, a serving police constable, complained that disciplinary proceedings were pursued and heard while she was on maternity leave. She alleged direct and indirect sex discrimination, victimisation and sexual harassment, including complaints about the timing and location of the disciplinary hearing and facilities provided at a preliminary hearing.

The Employment Tribunal upheld part of the direct discrimination claim. It found that the refusal to postpone the disciplinary hearing and the inadequate arrangements at the preliminary hearing disadvantaged the claimant. It did not determine the indirect discrimination and harassment issues and gave limited reasons for its conclusions.

The Chief Constable appealed. The claimant cross-appealed against rejection of an argument that disciplinary proceedings could not be pursued during maternity leave. The central issues were whether maternity-related disadvantage was necessarily sex discrimination and whether the Tribunal had adequately explained its decision.

1. Cross-appeal dismissed. The proposition that any disadvantage suffered by a woman on maternity leave is necessarily sex discrimination was rejected. Section 1(1)(a) of the Sex Discrimination Act 1975 requires separate findings of less favourable treatment and that the treatment was on the ground of sex. Where the disadvantage is maternity-related, no male comparator may be available, so the treatment may be assessed as unfavourable treatment. That does not dispense with the reason-why inquiry.
2. Fletcher was concerned with whether there was detriment and with the absence of a male comparator. It did not decide the ground-of-treatment question. The Tribunal had misunderstood it. The authorities, including Nagarajan, Khan and Shamoon, required the Tribunal to ask why the claimant received the treatment, including whether the reason was sex, maternity leave or some other reason.
3. The inadequate arrangements for the preliminary hearing could not, on the Tribunal’s own finding, establish direct discrimination. The identified reason was that the police had not anticipated the claimant’s attendance, not that she was on maternity leave, pregnant or a woman.
4. The Tribunal’s reasons were legally inadequate. It failed to state the applicable law, explain its treatment of Fletcher, determine the indirect discrimination and harassment claims, or give sufficient findings and reasoning on central factual issues. Rule 36 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 and the principles in Meek required reasons sufficient to show why a party had won or lost.
5. The appeal was allowed. The judgment could not stand. The direct and relevant indirect discrimination issues concerning the January disciplinary hearing were remitted to a fresh Employment Tribunal. Permission to amend was refused for the Occupational Health, preliminary-hearing and harassment issues, and for the alleged shifting of hearing dates.

• Employment Appeal Tribunal: allowed the Chief Constable’s appeal against the Employment Tribunal’s decision and dismissed the claimant’s cross-appeal. The relevant issues were remitted to a fresh Employment Tribunal.
• Employment Tribunal: upheld part of the claimant’s direct sex discrimination claim but did not determine the indirect discrimination and harassment issues and gave inadequate reasons.