Police Scotland’s plan to require all frontline police officers and staff to be clean-shaven from 29 May 2023 is now on hold until a consultation process with staff associations has concluded. In this insight, we look at the detail of the policy, why it is controversial and the issues police forces need to consider when implementing health and safety policies.

Background

Police Scotland had decided to implement a ‘clean shaven’ requirement for all frontline police officers and staff from 29 May 2023, with the exception of those who cannot shave for religious, cultural, disability or medical reasons. This is part of its new Respiratory Protective Equipment Policy and is related to the use of FFP3 face-masks, which are face-fitted and require users to be clean shaven. Police Scotland considered that the policy was necessary as FFP3 masks offer the most appropriate and effective respiratory protection from serious health risks.

This plan is now on hold due to concerns that the policy is not compliant with the Human Rights Act 1998 or the Equality Act 2010 as it was argued that it is not a proportionate means of protecting those on the front line. The Scottish Police Federation reported that it had been ‘inundated’ with complaints and concerns from its members about the policy. As a result, the Scottish Police Federation has said that it is supporting individual members with employment tribunal claims relating to the policy and is seeking its own legal advice relating to the policy’s compliance with the law on discrimination, health and safety and human rights.

In response, Police Scotland has announced that a consultation is to take place before it will make any further decisions on the future of the policy.

What to take away

Many changes to working practices to enhance health and safety for workers can be adopted and implemented without concern. However, there are occasionally some approaches which might put individuals from particular groups, or those with particular protected characteristics, at a disadvantage. In those circumstances, there is a risk of indirect discrimination. 

In order to avoid discriminatory practices and to minimise the risk of challenge under the Equality Act 2010, an employer that wishes to introduce a health and safety policy must be able to demonstrate that it has carefully considered the implications of its policy, has determined whether there is any risk of discrimination and, if there is, has assured itself that its policy can be ‘objectively justified’. In order to do this, the employer must be satisfied that the requirement (i.e. in this case, to be clean shaven) is "reasonably necessary" in order to achieve a legitimate aim (i.e. in this case, the health and safety of frontline staff and officers).

This will require a proper assessment of both the risk that the health and safety measure seeks to mitigate against, whether the measure disproportionately disadvantages people with protected characteristics (‘the equality impact’) and, if so, whether there is an alternative way of mitigating the health and safety concern, which would not have less of an impact. 

As public sector organisations, police forces will also need to undertake a human rights impact assessment to identify, understand, assess and address the adverse effects of the health and safety policy it wishes to introduce on any of the human rights set out in the Human Rights Act 1998. Human rights are basic rights and freedoms that all people are entitled to. However, they are not absolute rights, which means that any interference with those rights will be lawful if it can be ‘objectively justified’. 

The discriminatory effect of the policy on human rights and on those with protected characteristics should be looked at both quantitatively (the numbers of staff affected) and qualitatively (the impact on those staff and how long-lasting it is) and alternatives should be considered.

How Capsticks can help

Capsticks supports police forces and other employers in meeting both their equity, diversity and inclusivity (EDI) and health and safety obligations through drafting policies, codes of conduct and delivering training to employees at all levels.

We also support police forces and other employers to deal with any complaints that may arise (by conducting investigations, supporting decision makers and HR, and defending any employment tribunal claims).

If you would like access to advice, training or need further guidance on EDI and/or health and safety in the workplace (either generally or in relation to a specific case) please contact Paul McFarlane, Alessandra Gettins or Anna Semprini.