Indirect sex discrimination

06 November 2017

The UK is still a member of the EU and so decisions of the European Court of Justice continue to be binding on UK courts when interpreting areas covered by EU law - such as discrimination.

The Greek case of Esoterikon v Kalliri is hardly ground-breaking, in fact, it almost has a nostalgic feel. The case concerns the recruitment of candidates for places in police training schools, which required that all candidates had to be at least 1.7m tall (just over 5’6’’). A discrimination case was brought by Ms Kalliri who was just two centimetres short of the required height. The Greek court found that a much larger proportion of women than men would be unable to meet the height requirement, but it nevertheless decided to refer the question to the European Court of Justice.

The CJEU held that women were clearly placed at a particular disadvantage by the requirement. The key issue was whether the employer could show that the requirement was justified. That was a matter for the national court to decide, but the CJEU was able to provide some guidance on the issue. The Greek Government claimed that it was appropriate and necessary for police officers to have a certain physical stature in order to perform effectively. The CJEU, however, said that even if the duties of a police officer required a certain ‘physical aptitude’, it was not clear that such an aptitude was necessarily connected with height. In other words, just because someone was shorter, that did not mean that they lacked the physical presence needed to be an effective police officer. The aim of ensuring the selection of suitable candidates could better be achieved through specific tests of each candidate’s physical ability. It followed that the defence of justification would be unlikely to succeed and the height requirement would amount to unlawful discrimination.

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