· 2 min read · Features

Legal-ease: Indirect discrimination

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Indirect discrimination, proportionality and legitimate aims

A recent case involving a police dog-handling assessment and aptly-named police dog Hulk has brought helpful reminders of the issues to be aware of to avoid claims of indirect discrimination. In Carter v the chief constable of Gloucestershire and others the employment tribunal found that the recruitment assessment was discriminatory on the grounds of sex.

The claimant was a serving police constable. She applied to be a dog-handler. The assessment included a run around a challenging three-hour course comprised of steep inclines and descents and lifting dogs over obstacles. With no break the candidates then had to carry their dogs for more than 70 metres uphill. Carter was initially given a dog called Hulk that weighed 35kg to carry. She couldn’t lift him at all after her previous exertions and ultimately failed the assessment.

The employment tribunal held that the assessment was a provision, criteria or practice (PCP) that put women at a particular disadvantage compared to men. The police could not show that the PCP was a proportionate means of achieving a legitimate aim, and consequently were guilty of indirect discrimination. Women were significantly underrepresented as dog-handlers within the respondent’s force and the number of women applying for the posts was also noticeably lower.

Interestingly the College of Policing had set out in its reports that fitness tests could be potentially discriminatory on the grounds of sex and noted that any derogation from the standard test they set could carry a risk of legal challenge. The dog-handler test was tougher than the College of Policing’s standard test and put women at a group disadvantage. It had not been set as an aptitude test, and was purely fitness based.

Although the tribunal found that the police had shown a legitimate aim, it said that the stringent nature of the assessment could not be justified. At least half of the dog-handlers currently serving had not carried out the test nor would they be required to. Therefore the test was not appropriate or necessary.

The tribunal awarded Carter nearly £15,000 in compensation for indirect sex discrimination.

This case is an excellent illustration of the importance of thinking through the need for certain practices or criteria, which may negatively affect a group of people, putting them at a particular disadvantage. Indirect discrimination can be justified, but only if it is to forward a legitimate aim and is proportionate in doing so.

Arwen Makin is a senior solicitor at ESP Law, provider of the HR Legal Service