In Advocate General for Scotland v Brown and anor the claimant, a female firearm officer in the Ministry of Defence Police (MDP), brought a claim of indirect sex discrimination under section 19 Equality Act 2010. She had been dismissed for failing to meet the required fitness standard in the national multi-stage fitness test (MSFT) set by the College of Policing as a requirement for authorised firearms officers.
The MSFT measures aerobatic fitness and is widely used across policing. However, the College of Policing also endorses alternative fitness tests, including the Chester treadmill test, which can also measure aerobic fitness.
The claimant argued that the MSFT disproportionately disadvantaged women and that the MDP’s failure to offer an alternative test or sufficient support to familiarise herself with such an alternative rendered the fitness requirement discriminatory.
Indirect discrimination occurs when an employer applies a provision, criterion, or practice (PCP) that applies equally to all employees but has a disproportionate adverse impact on a particular group, such as women, compared to others. Under section 19 of the Equality Act 2010, a PCP is discriminatory if it cannot be objectively justified as a proportionate means of achieving a legitimate aim.
The key issue in this case was whether the MDP's fitness requirement could be justified or whether alternative methods, such as the Chester treadmill test, should have been explored as a less discriminatory means of achieving the same aim.
The Tribunal agreed that the MSFT placed women at a disadvantage compared to men. It also found that the MDP had failed to provide the claimant with adequate support or encouragement to complete the alternative test.
The Tribunal ruled that the MDP had not discharged its burden of showing that the application of the fitness requirement was a proportionate means of achieving its legitimate aims, including ensuring fitness for duty, safeguarding public safety, and maintaining national security. It therefore found the claimant’s dismissal to be an act of indirect sex discrimination.
The EAT allowed the MDP’s appeal, finding that the Tribunal’s reasoning was insufficient to support its conclusion. Specifically, the tribunal had failed to explain whether the Chester treadmill test (or any other alternative method) would have been a suitable and less discriminatory alternative to the MSFT. Additionally, the Tribunal did not fully analyse whether the MDP’s overall approach to fitness testing was proportionate to its legitimate aims.
The case has been remitted to the same Tribunal, which must reconsider whether the MDP’s fitness test policy could have been applied in a less discriminatory way while achieving its operational objectives.
This case highlights the importance of careful policy design and implementation to avoid indirect discrimination claims. Employers should consider the following steps:
Employers implementing fitness or capability requirements should ensure they are supported by a clear, evidence-based rationale and that employees are given sufficient support to comply. Proactively addressing potential disparities will not only reduce the risk of legal claims but also foster a fair and inclusive workplace.