Employment tribunal and court judgments | December 2024

The Claimant, Ms Koren Brown, was an authorised firearms officer (AFO). She was required to meet the fitness level requirement of 7.6 on the Multi-Stage Fitness Test, also known as the bleep test. However, after multiple attempts, she failed. Ms Brown was dismissed and brought a claim for indirect sex discrimination on the basis that the requirement to pass the bleep test put women at a disadvantage as they found it harder to meet the level required.

The Employment Tribunal upheld her claim of indirect sex discrimination against the Ministry of Defence Police’s (“MDP”) policy that all authorised firearms officers must achieve a score of 7.6 on the fitness test. The ET accepted that this was a provision, criterion or practice that had been applied to Ms Brown and put women at a disadvantage. The ET found that the fitness test was a proportionate means of achieving a legitimate aim, but an alternative means of fitness testing should have been offered to Ms Brown.

The MDP appealed against the decision.

On appeal, the EAT had to consider whether the requirement for all AFO’s to achieve a score of 7.6 on the bleep test was a proportionate means of achieving a legitimate aim. The EAT held that Employment Tribunal rightly concluded that the fitness test gave rise to group and individual disadvantages for female firearms officers, but it was nevertheless a necessary and proportionate means of achieving the MDP’s aims.

Despite this, the EAT did allow the appeal in part on the grounds that the Employment Tribunal didn’t properly address the issue of whether Ms Brown could undergo an alternative fitness test which could have been a less discriminatory means to achieve its aims.

With a question of indirect sex discrimination, it is important to consider not only the aims that you are trying to achieve as an employer, but also the means to achieving those aims. This case is a reminder of the importance for employers to consider alternative, less discriminatory routes to achieving aims where possible.