Background: 

The claimant, Ms Brown, complained of the fitness level requirement for an authorised firearms officer in the Ministry of Defence police. She stated that it was a provision, criterion or practice which was discriminatory on the basis of sex. The claimant had become a constable in the Ministry of Defence Police in 2016 but the failure to complete the job related fitness test led to her service being terminated in October 2018.  It was a multi-stage fitness test which had to be passed. This is also known as the bleep test in which an individual runs up and down a 15 metre track timed against a series of bleeps. The bleeps getting shorter each time.   

As part of a review, it was found that there would be a slightly higher percentage of maximum heart rate for women undertaking the test but was considered to be within an acceptable limit for a test of physical fitness.  

Outcome: 

At first instance, the Tribunal found that the provision had been applied to the claimant and that it did put women at a disadvantage. They found that a requirement to test the fitness level was a proportionate means of achieving a legitimate aim in relation to the requirement for those in the Ministry of Defence Police, which would be tasked with the most serious of issues including terrorism. However, the Tribunal went onto find that the application to the claimant individually was not proportionate as there was no alternative means of establishing whether the required standard of fitness had been attained. 

The Ministry of Defence Police, through the Advocate General for Scotland, appealed the finding of the Tribunal. The appeal was allowed in part. The part allowed related to the assessment of proportionality and the issue of alternative. The respondent argued successfully that the Tribunal had failed to outline the alternative means in question and whether those alternatives would have been proportionate and been less discriminatory.  With this in mind, the EAT allowed this part of the appeal and remitted the case back to the Tribunal.  

Practical Guidance for Employers: 

The finding in this case is interesting as despite finding that the provision was a proportionate means of achieving legitimate aims of the organisation it still found that there had been indirect discrimination. It was through distilling it down to the individual claimant and the need to provide an alternative to that provision that the case was successful.  Issues were found with that finding as seen with the EAT judgment here but may still stand when it is remitted if that less discriminatory alternative can be outlined by the Tribunal.   

https://assets.publishing.service.gov.uk/media/6749d4846f60e77679723ab8/The_Advocate_General_for_Scotland_as_representing_The_Ministry_of_Defence_v_1__Korean_Brown_2__The_College_of_Policing_Ltd__2024__EAT_189.pdf