The European Court of Justice has recently decided that a rule requiring police recruits to be at least 1.7m tall was unlawful discrimination which could not be justified.
Any employer which imposes a requirement like this which applies to all staff but which could discriminate against certain groups of employees (or potential employees) risks being found guilty of indirect discrimination.
The key is whether the rule or requirement imposed by the employer has the effect of putting a group of employees which possess one of the protected characteristics under the Equality Act (and there are 9 of them, age, disability, gender reassignment, marriage/civil partnership, pregnancy/maternity, race, religion, sex and sexual orientation) at a disadvantage compared to employees without that protected characteristics. If so, and the employer can’t show justifiable reasons for their actions, then the disadvantaged employees will succeed in their claim for indirect discrimination.
In the Greek policy case, far more women were unable to apply to join the force than men, because of the height requirement. The police argued that the requirement was needed to ensure that the police could effectively carry out their tasks and that certain physical attributes (including height) were a necessary and appropriate way of meeting those requirements. The European Court disagreed and found that there were other, less discriminatory, ways of selecting suitable candidates, such as specific tests which allowed the candidates’ physical abilities to be assessed.
We work with employers to help them avoid these types of claim stemming from their recruitment processes, working practices and written policies and procedures. It’s worth taking the time to think about what rules and requirements you’re putting in place for staff, why you think they’re necessary and whether it’s possible to get the same (or even a better) result by putting in rules which could avoid potential discrimination. We’d be delighted to talk you through your rules and procedures, so please just get in touch
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