RMC (Rule 50 Order Applied) v Chief Constable of Hampshire Constabulary

An Employment Tribunal may strike out an indirect discrimination claim where the parties agree that the material facts are undisputed, no oral or further evidence is required, and the Tribunal has sufficient material to scrutinise objective justification. The power remains one to exercise sparingly, particularly in discrimination cases.

For indirect discrimination, the Tribunal must assess the actual PCP advanced and evaluate proportionality by weighing the employer’s legitimate aims against its discriminatory effect. A recruitment-vetting policy that grades offences by seriousness and permits consideration of relevant circumstances may properly be treated as other than a blanket exclusion.

The Claimant applied for a civilian Force Enquiry Centre Officer role with Hampshire Constabulary. His application was rejected under Standard Operating Procedure 8 because of his criminal convictions and custodial sentences.

He brought a claim of indirect sex discrimination, alleging that the policy disadvantaged men and was an unjustified blanket ban. The Southampton Employment Tribunal struck out the claim as having no reasonable prospect of success after the parties agreed that the facts were undisputed, all relevant material was available and no oral evidence was required.

The appeal concerned the identification of the PCP, the Tribunal’s assessment of objective justification, and whether striking out was permissible on that material.

1. Appeal dismissed. The Employment Tribunal was entitled to strike out the indirect sex discrimination claim as having no reasonable prospect of success.

2. The Tribunal had permissibly identified the PCP as the application of SOP 8. That was consistent with the parties’ pleaded cases and earlier case-management clarification. The Claimant had not then objected to that formulation. On the policy documents, the Tribunal was entitled to reject the contention that SOP 8 imposed a blanket ban on all applicants with criminal convictions.

3. SOP 8 differentiated between offences by seriousness and allowed consideration of the nature and circumstances of offending, repetition, age and elapsed time. The Tribunal could take that flexibility into account when assessing proportionality.

4. Although discrimination claims commonly require caution before strike-out, indirect discrimination claims may be determined on agreed facts. The Tribunal had to conduct effective scrutiny of objective justification. Here it did so by considering the Respondent’s legitimate aims and balancing them against the discriminatory impact of the PCP.

5. The Tribunal was entitled, on the material and issues presented, to find that the policy’s means were proportionate. It was not required to assume that alternatives involving supervision or continued safeguards for a particular employee would be proportionate. There was no identified further evidence that could affect the result.

• Employment Appeal Tribunal: appeal dismissed: [2016] UKEAT 0184_16_0811.
• Southampton Employment Tribunal: Employment Judge O’Rourke struck out the Claimant’s indirect sex discrimination claim as having no reasonable prospect of success; judgment sent on 17 February 2016.