Home Office v Saunders

EAT: Birtles J, Mr D Norman and Mr J Hougham: 7 November 2005

A rule whereby prisoners were to be searched only by a prison officer of the same sex was rescinded as it was thought that to not allow female prison officers to carry out searches of male prisoners would inhibit their career prospects, but, to meet a perceived risk that female prisoners would object to being searched by a man on grounds of privacy and decency, instructions were issued not to permit male prison officers to search female prisoners. A further instruction stated: "Female officers who are posted to male establishments should understand that they may now be required to carry out rub-down searches of male inmates." The claimant, a female prison officer working at a male prison, was sent to on detached duty to a women's prison, when she refused to carry out a rub-down search on a male prisoner on the ground that she found the procedure degrading and distasteful. The employment tribunal, upholding a complaint by the claimant that the employers had discriminated against her on the ground of her sex in contravention of section 1(1)(a) of the Sex Discrimination Act 1975, held that the correct comparator under section 5(3) was not that of a male prison officer searching a male prisoner, as contended by the employers, but that of a male prison officer searching a female prisoner.

The employers appealed.

The Employment Tribunal held:
The employment tribunal was entitled to find that the appropriate hypothetical comparator for the claimant was a male prison officer who was required to conduct a rub-down search on a female, and it followed that the claimant was subjected to direct sex discrimination in being required to carry out a rub-down search of a male prisoner when a male colleague was specifically prohibited from carrying out a rub-down search of a female prisoner.

The appeal was dismissed.

Appearances: Alison Hewitt (Treasury Solicitor) for the Prison Service; Angus Halden (Augustines Injury Law, Bristol) for the claimant employee.