M Glover v Lacoste UK Ltd & Anor
[2023] EAT 4
The Advocate General for Scotland v Koren Brown & Anor
20 November 2024
[2024] EAT 189
Employment Appeal Tribunal
A female police officer was fired for failing a fitness test that was harder for women. A judge said the police discriminated, but another judge said the first judge didn't fully consider if a fairer, easier test could have been used. The case will be looked at again.
Key Facts
- •Koren Brown, a female police officer, was dismissed from the Ministry of Defence Police (MDP) for failing to meet the required fitness standard on the multi-stage fitness test (MSFT).
- •The MSFT was a provision, criterion, or practice (PCP) that disproportionately disadvantaged women.
- •Brown claimed indirect sex discrimination under section 19 of the Equality Act 2010.
- •The Employment Tribunal (ET) found indirect discrimination but the MDP appealed.
- •The MDP argued that the fitness standard was a proportionate means of achieving legitimate aims.
- •The ET found the standard was proportionate in general, but not in its application to Brown because an alternative fitness test (Chester treadmill test) was not offered.
Legal Principles
Indirect discrimination under section 19 Equality Act 2010.
Equality Act 2010
Proportionate means of achieving a legitimate aim.
Equality Act 2010, section 19(2)(d) and case law (Hardy and Hansons plc v Lax [2005] ICR 1565 CA, Essop v Home Office (UK Border Agency); Naeem v Secretary of State for Justice [2017] UKSC 27)
The ET's role in assessing justification and the EAT's role in scrutinising the ET's decision.
Hardy and Hansons plc v Lax [2005] ICR 1565 CA; DPP Law Ltd v Greenberg [2021] EWCA Civ 672
Outcomes
Appeal allowed in part.
The ET's finding of group and individual disadvantage was upheld. However, the ET's assessment of proportionality regarding the application of the PCP to Brown was inadequate because it didn't sufficiently address whether a less discriminatory alternative (the Chester treadmill test) existed and would have avoided the disadvantage.
Remitted to the same ET.
The matter was remitted to the same ET to reconsider the proportionality of the MDP's actions specifically in relation to the claimant and the availability of a less discriminatory alternative.