Two recent cases , firstly a decision based upon the circumstantial evidence being weighed up where it is one person’s word against another, the extent that the Claimant went to in this case was considered not without cause. The second case indirect sex discrimination as regards a PCP requirement putting women at a disadvantage.
Steele(S) v Uniquely Chic Furniture (U)
Miss S was employed by Uniquely Chic Furniture (U) from September 2015.
When the two Directors (married to each other) were away on holiday in December 2016, S was accused of undermining the manager in charge. S was upset when reprimanded by the female Director (SS) and did not agree with the criticism. The male Director (MB) called her the next evening, and discussed the reprimand, allowing S to give her side of the story. However, upon calling back, he proceeded to talk about how much he wanted sex with S. She attempted to make light of it, and when he called back, she assumed he was ringing to apologise, but instead received more of the same.
S was picked up by SS the next morning to travel to work, the last day before the Christmas break. She did not mention the calls. S did not return to work after Christmas, making appointments to see Citizens Advice (CAB), and being signed off with stress by her doctor. She resigned in January, stating sexual harassment by MB as the reason. She claimed harassment on the grounds of sex at ET.
The ET had to make a decision based upon the word of each party, as there was no evidence of the harassment other than the word of S. U claimed S had fabricated the claim, but the ET preferred the evidence of S. She had resigned with no guarantee of getting an alternative job, had texted her sister at the time of the calls, and spoken to another friend, as well as contacting CAB and seeing her GP. S had been harassed on the basis of her sex, and awarded S £26,500 for compensation for injury to feelings and personal injury, plus interest.
Carter (C) v Chief Constable of Gloucestershire (G)and others
A recruitment assessment for prospective dog handlers, devised by Avon and Somerset Police Force, was used by the Tri-Force area (Avon and Somerset, Wiltshire and Gloucestershire). C a police constable, undertook the assessment but was unable to complete the physical element of the ‘dog carry’. She brought a claim of indirect sex discrimination to ET. Dog-handling test was found to be indirectly discriminatory.
C a police constable in Gloucestershire Police Force applied for a role as a dog-handler. The two day assessment centre is described as an aptitude test by the force, rather than a physical test. The Police Advisory Board agrees national job-related fitness test (JRFT) levels, including for specialist areas. An Equality Impact Assessment had not been carried out on the test, and when the test was submitted to HR, it was not made clear that elements including the long walk were determinative, and candidates could be withdrawn for failing it. The assessment had been described as multi-faceted, and endurance and stamina are not part of the published criteria.
Women are underrepresented in dog handling, with a total of 49 posts in the tri-force area, 11 of which are held by women. The dog handling test was adapted from one devised by Avon and Somerset, and on day one involves a ‘long walk’ which includes an element called the ‘dog carry’, whereby candidates had to carry a dog over a 70m course. The long walk and dog carry were carried out at the end of the morning, before a break or lunch. As it was a new test, many current dog handlers had not had to take it.
During the long walk, a 2.5-3.5 hr run and walk, with difficult terrain, navigating puddles, lifting the dog over walls and running up and down a steep and muddy incline, C, the only female on the assessment day, kept up with the male candidates, but was physically exhausted by the time of the dog carry. She had a heavier and larger dog than the one she had worked with earlier. She was unable to lift and carry the dog and was withdrawn from the process. She raised a complaint through the Police Federation, stating that the only JRFT for dog handlers is a 5.7 on the “bleep test”, and that the long walk and dog carry was a physical test, not an aptitude test. Her complaint was dismissed, and C brought a claim to ET for indirect sex discrimination.
It was agreed that there was a Provision, Criterion or Practice (PCP) – a requirement to undertake an assessment to be a dog handler, and that this included an endurance and stamina element. Although apparently neutral, it would put women at a disadvantage. The College of Policing accepted that the JRFT alone put women at a disadvantage, with fewer women than men passing the bleep test, and this dog carry test was a much higher level. Discrimination can be justified if it is a proportionate means of achieving a legitimate aim. Here, the aim was legitimate; dog handlers are required to be resilient, determined and be able to carry an injured dog. However, it was not justified. The test does not accurately reflect the demands of the job, as the majority of dog handlers already in post had not had to take this test, and would never be expected to do so. The ET found indirect sex discrimination