The proverbial, and in this case literal, little person took on the establishment and won with the ECJ finding last month that the requirement for Greek police offers to be a minimum of 1.7 metres tall (5ft 7 in old money) was indirect sex discrimination.
In the UK police officers are no longer subject to a minimum (or maximum) height requirement, but this case is still a useful reminder for employers of the issues that can arise when putting in place blanket physical recruitment criteria. There have been a number of European cases on this point in the emergency services sector, including:
- Colin Wolf v Stadt Frankfurt am Main: a maximum recruitment age of 30 for German firefighters was held to be lawful given the “exceptionally high physical capabilities” required of firefighters. It held that recruiting firefighters older than 30 years of age would not allow for a reasonable period of employment before retirement at 50 years of age.
- Vital Pérez v Ayuntamiento de Oviedo: a maximum recruitment age of 30 for Spanish police offers was held to be unlawful. The Court distinguished Wolf as it felt that the physical demands on a state police officer were less than on a firefighter. In reaching its decision, the ECJ also considered the fact that the Police Authority required eligible candidates to undertake a stringent physical fitness test and took that as an admission of sorts by the Authority that age is not in itself a clear indicator of ability.
- Salaberria Sorondo v Academia Vasca de Policia y Emergencieas: a maximum recruitment age of 35 for Basque police offers was held to be lawful. The ECJ distinguished the facts from the Vital Pérez case as Basque police officers were also required to perform the physically demanding duties of the state security forces in that region and therefore it considered that this case and the physical requirements of the job more closely mirrored the facts of Wolf.
In the present case of Esoterikon v Kalliri Ms Kalliri applied to join the Greek police but was rejected due to her falling just 2 centimetres short of its minimum height criteria. She brought a claim for indirect sex discrimination on the basis that women are in general shorter than men and so this universal height requirement indirectly disadvantages women. As with the UK’s national legislation, indirect discrimination is capable of being objectively justified if the employer’s provision, criterion or practice is a proportionate means of achieving a legitimate aim or, in the words of the EU Directive, is “appropriate and necessary” to achieve that aim.
The Greek Court of Appeal agreed with her arguments and found that her rejection was discriminatory and not justifiable. It was appealed to the ECJ. The Police Authority argued that the aim of the height requirement was to ensure its officers were physically able to deal with the various functions of the police force. The ECJ took no issue with this as a legitimate aim – of course police officers should be capable of performing the rigours of their role. However, it found that the Authority’s arguments around proportionality came up short [Ed: sorry] and a minimum height requirement was not an appropriate and necessary means of achieving that aim. This was because:
- certain police functions such as traffic control do not require the use of significant physical force;
- even if all functions of a police officer did require such force, a physical aptitude test is a more appropriate means of assessing candidate suitability, rather than relying on height (or age); and
- up to 2003, Greek law imposed different height requirements for men and women seeking entry to the Police.
It therefore found the Police Authority’s actions to be discriminatory and unlawful.
Lessons to employers
(i) A reminder that job applicants have the same protection against discrimination as employees/workers;
(ii) Do not rely on general assumptions about physical (or mental) ability when devising recruitment selection criteria;
(iii) Blanket recruitment criteria which may act as a barrier to individuals of a particular sex, age, race etc. risk being unlawful unless there is a compelling reason and evidence to show there is no less discriminatory means of selection;
(iv) Rather than assessing suitability based solely on a protected attribute of the candidate (whether age, sex, height, weight, health status etc.), consider whether an aptitude test is a more appropriate means of assessing suitability. Please note, however, that (see previous blog post) any such test must itself not be discriminatory and should not disadvantage a particular group over another, where a more suitable and less discriminatory method of testing is available.
It is hard not to feel sorry for the Greek Police Authority here – no doubt the different height requirements prior to 2003 were scrubbed because of the risk of a claim by a man who was only tall enough if he had been a woman, and yet an equalised height threshold turns out to be dangerous too. But there is an obvious solution – don’t measure physical resilience by an irrelevant indicator, whether age or height; and
(v) Be prepared to use aptitude tests post-recruitment to determine what sort of role the employee can do once recruited. Some police officers will be better suited to traffic control, some to desk work and some to supressing public disorder, but a Police Authority will need all of them, so recruit first and then apply the tests which allow you to tell the difference.