The Advocate General for Scotland v Koren Brown & Anor

For indirect discrimination under Equality Act 2010, an employer must justify both an otherwise justified general policy and, where the policy permits alternative responses, its application to the individual concerned. A tribunal finding that an alternative fitness assessment should have been offered must identify the alternative and explain why it would, or could, be less discriminatory while achieving the employer’s legitimate aims.

Group disadvantage does not require the provision, criterion or practice to be an absolute bar. Nor must the claimant prove why the protected group is disadvantaged. However, inadequate reasons on the decisive proportionality assessment render a finding of indirect discrimination unsafe.

The claimant was employed by the Ministry of Defence Police as an authorised firearms officer. Her employment ended after she repeatedly failed to attain level 7.6 in the multi-stage fitness test. She brought a claim of indirect sex discrimination under Equality Act 2010.

The Employment Tribunal found that the test requirement disadvantaged women and the claimant. It held that the general policy was justified, but that its application to the claimant was disproportionate because she had not been offered a properly supported alternative assessment, particularly the Chester treadmill test.

The Ministry of Defence Police appealed. The central issue was whether the Tribunal had adequately explained why an alternative assessment was a less discriminatory means of achieving the legitimate aims.

1. Appeal allowed in part. The Employment Tribunal permissibly identified the PCP as the requirement to attain and maintain level 7.6 in the multi-stage fitness test. It was not required to redefine the PCP to include passing the Chester treadmill test.
2. The Tribunal’s findings of group and individual disadvantage were unimpeachable. It had found that women would find the required level harder to achieve than men for innate biological reasons. A PCP need not be an absolute bar, and the reason why the claimant herself suffered the disadvantage was not determinative of indirect discrimination.
3. The Tribunal was entitled to find that the general policy was a proportionate means of achieving legitimate aims. Those aims included safety, operational fitness, compliance with College of Policing standards, interoperability and national security. It was also entitled to find that the claimant had not been given a formal opportunity, guidance or support to take an alternative assessment.
4. However, the Tribunal’s conclusion that the application of the policy to the claimant was disproportionate was unsafe. Its reasons did not identify whether the relevant alternative was direct testing of aerobic capacity or another indirect assessment. Nor did they show whether that alternative would, or could, avoid the group disadvantage to women or the claimant’s particular disadvantage. An alternative to dismissal was not automatically a less discriminatory means for the purposes of Equality Act 2010.
5. The finding of indirect sex discrimination was therefore set aside only insofar as it rested on that inadequately reasoned proportionality assessment. The case was remitted to the same Tribunal, if practicable, for a limited reconsideration of proportionality in the policy’s application to the claimant and any less discriminatory alternative.

• Employment Appeal Tribunal: allowed the Ministry of Defence Police’s appeal on the adequacy of the proportionality reasoning, dismissed the remaining grounds, and remitted the limited issue of individual application of the policy.
• Employment Tribunal, Aberdeen: upheld the claimant’s indirect sex discrimination claim against the Ministry of Defence Police and dismissed the claim against the College of Policing Ltd. The Tribunal’s reserved decision was sent on 8 August 2023.