Police fitness test not indirectly discriminatory

In The AG for Scotland (Ministry of Defence) v (1) Koren Brown and (2) The College of Policing Ltd, [2024] EAT 189, the EAT has overturned a finding that the police fitness test is indirectly discriminatory. It found the ET’s reasoning to be unsafe and inadequate.

The ET had accepted that imposing a fitness level requirement for authorised firearms officers amounted to a provision, criterion or practice (PCP). It had also accepted that the fitness level requirement had put women, and the Claimant, at a disadvantage.

In dismissing the employer’s defence, the ET accepted that whilst, in general terms, the PCP was a proportionate means of achieving a legitimate aim (i.e. retaining a fit workforce) it also found that the employer’s application of the PCP to the Claimant was not proportionate. More particularly, it found that there was an alternative means of establishing the fitness standard available (a treadmill test instead of a bleep test) and that the alternative ought to have been offered to the Claimant. Accordingly, the ET found that there had been indirect discrimination against the Claimant.

On appeal, the EAT agreed with the employer that the ET’s finding was unsafe, since the ET had not demonstrated sufficient engagement with the question of whether the alternative means of undertaking the fitness test would have provided a less discriminatory alternative (i.e. would a treadmill test be any less discriminatory than the bleep test)?

The key point to emerge for Respondents is that persuading an ET that a PCP is, in general, a proportionate means of achieving a legitimate aim, cannot be considered the end of the matter. There is a further issue about whether it was proportionate to apply the PCP to the particular employee in question. That means examining available alternatives that might mitigate the disadvantageous impact of the PCP.

---

Authors

Alice Meredith

Call 2013

Related areas

Employment

---