In the recent case of Carter v Chief Constable of Gloucestershire & Others  an Employment Tribunal was asked to determine whether a recruitment exercise for dog-handlers was indirectly discriminatory against female police offers.
Miss Carter was a police constable in Gloucestershire Police Force. In November 2016, she applied for a role as a dog-handler and was invited to attend a two-day assessment centre.
The dog-handling assessment was described as an “aptitude test”, rather than a “physical assessment”. Despite this, the assessment involved a 10-mile run, a ‘Long Walk’ over rough terrain and a ‘Dog Carry’ element, which required all candidates to carry a dog over a 70-metre course.
The Tribunal heard that the Claimant was required to run and walk for more than 3 hours through difficult terrain, navigating puddles, running up and down steep inclines and lifting the dog over walls. Miss Carter testified that the dog she was carrying, called Hulk, weighed 35kg and was considerably heavier than the dog she had worked with earlier in the process. She was withdrawn from the process and claimed that, as the only female candidate, she struggled to keep up with the male candidates, stating, “I could lift the dog but I had nothing left to carry him. I just couldn’t get any momentum”.
The employer claimed that it was a key requirement for dog-handlers to be physically fit because the nature of their job often required criminals to be tracked through difficult terrains. However, the Claimant alleged that there was a higher pass rate amongst men than women because women had different levels of strength and stamina and as such, the test favoured men more than women. The Tribunal also heard evidence that women were under represented as dog-handlers in all three police forces and that out of a total of 49 posts in the Tri-Force area, only 11 were held by women.
The Tribunal agreed that a Provision, Criterion or Practice (PCP) existed i.e. that an assessment was required to qualify as a dog-handler and that this included a stamina and endurance element. Although the PCP, on the face of it, was neutral, it put women at a disadvantage.
The Tribunal had to decide whether the disparate impact on women could be justified by the employer as a proportionate means of achieving a legitimate aim. It held that the aim was legitimate in that dog-handlers are required to carry an injured dog and must be physically fit. However, it held that the means of achieving this aim was not proportionate as the only fitness test for dog-handlers set by the Police Advisory Board was to achieve 5.7 on the “bleep test”. The test set by the Respondents went far beyond this and did not accurately reflect the demands of the job.
No Equality Impact Assessment had been carried out on the test when it was introduced and the majority of dog-handlers in post had not had to take the test (and were not expected to do so). As such, the Tribunal found that the Claimant had been subjected to indirect sex discrimination.
It is important for employers to be alert to the potential disproportionate impact of policies and procedures within the workplace and should always consider whether there is any less discriminatory ways to achieve the objectives set.
Toni Fitzgerald-Gunn is a Solicitor specialising in employment and discrimination law in Worthingtons Commercial Solicitors, Belfast. She regularly drafts and advises employers on contents of employment handbooks and workplace policies and procedures. Toni can be contacted on 02890434015 or email email@example.com