A requirement that police officers be a minimum height is contrary to the Equality Act 2010
Did a requirement that police officers must be of a minimum height indirectly discriminate against women? This was the question before the European Court of Justice (ECJ) in the recent case of Ypourgos Ethnikis Pedias kai Thriskevmaton v Kalliri.
The European Equal Treatment Directive (Directive 76/207/EEC) prohibits direct and indirect discrimination on the grounds of sex in the public or private sectors, in relation to access to employment, training and promotion, and working conditions.
Under the Directive, direct sex discrimination occurs where one person is treated less favourably on grounds of sex than another is, has been or would be treated in a comparable situation.
Indirect sex discrimination occurs where “an apparently neutral provision, criterion or practice would put persons of one sex at a particular disadvantage compared with persons of the other sex, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary”.
As EU law has supremacy over the national law of member states, domestic courts are required to interpret their own laws in accordance with the Equal Treatment Directive and if there is a conflict between national law and EU law, EU law prevails. In addition, because the Equal Treatment Directive has direct effect on the member states, it means that an individual can directly rely on the Directive to bring a claim against a public body before a domestic court. This is what the complainant, Ms Kalliri, in this case did when she argued that Greek law was incompatible with the Equal Treatment Directive.
Ms Kalliri applied for entry into the Greek Officers’ School and School for Policemen for the academic year 2007-2008, however her application was rejected because she did not meet the minimum height requirement set out in Greek law which was that candidates had to “be of a height (in the case of men and women) of at least 1.70m”. Ms Kalliri was 1.68m tall.
Ms Kalliri brought a claim of indirect discrimination which was upheld by the Administrative Court of Appeal in Greece on the basis that the minimum height requirement constituted sex discrimination. However, the Greek Government appealed against that decision on the basis that the aim of the law was to enable “the effective accomplishment of the task of the Greek police” and that having certain particular physical attributes, such as being of a minimum height, was “a necessary and appropriate condition for achieving that aim”.
The Greek appeal court decided to refer the issue to the ECJ for a preliminary ruling on whether the minimum height requirement was indirectly discriminatory on the grounds of sex and if so, whether it was objectively justifiable.
In a relatively short judgement the ECJ ruled that the height requirement was indeed indirectly discriminatory, and the blanket restriction was not justified.
The ECJ noted that the referring court had found that far fewer women than men could meet the height requirement of 1.70m and so women were very clearly at a disadvantage compared with men when it came to applying to be a Greek police officer. As such, the ECJ said the law constituted indirect discrimination.
The ECJ then considered whether the indirect discrimination was objectively justified. The ECJ stated that ensuring the operational capacity and proper functioning of the police service was indeed a legitimate objective, but that the minimum height requirement was not a suitable way of achieving this objective.
The ECJ stated that some police functions (such as the arrest and custody of offenders) may require a candidate to have special physical characteristics, but other police functions (such as traffic control) did not require them. The Court also stated that even if all the functions carried out by the Greek police required a particular physical aptitude, there were other specific tests that could be used to assess physical ability that were less discriminatory towards women. That being the case, the ECJ concluded that the mandatory height requirement did not appear to be objectively justified because it was not appropriate or necessary to achieve the legitimate aim (the proper functioning of the Greek police service) it pursued.
Points to note
It is interesting that the Greek government decided to appeal the case when, as the ECJ stated, other less discriminatory tests can be used to assess a person’s physical aptitude. Many police forces across Europe dispensed with a minimum height requirement years ago. It also helped Ms Kalliri’s case that in the Greek armed forces, port police and coast guard, different minimum heights were required for men and women and, for women, the minimum height was 1.60m.
Minimum height requirements for men and women in the police force were abandoned in the UK in the early 1990’s.
Action to take
- If you have a minimum height requirement for employees to carry out certain roles, consider very carefully whether you can justify such a requirement. Height requirements indirectly discriminate against women and, as this case demonstrates, you are very unlikely to be able to justify them.
- Review your recruitment processes to make sure that your criteria are non-discriminatory and are necessary to the job. You must ensure that you do not use discriminatory measures when recruiting staff – this includes in the job advert, the interview and selection process.
This article was written and researched by Miranda Amos, Solicitor at our Salisbury office
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