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Minimum height requirement unlawful, says European Court of Justice

Posted
November 9, 2017
Employment Law

Since the 1990s, it has become very unusual for UK-based police forces to require its officers to be a particular height. But is it even still lawful to enforce a minimum height requirement when selecting new recruits? The European Court of Justice was recently asked to consider precisely this question in the Greek case of Ypourgos Esoterikon and anor v Kalliri. 

 The Facts Under existing rules, applicants for the Greek police service have to be at least 1.7m tall. This rule is applied to everyone, regardless of gender. As a result, unsurprisingly, it has proven to be a significant barrier for many more women than men. The police service has sought to justify the height requirement by reference to the range of duties that police officers are required to perform. In effect, the police service has argued that being of a certain height makes it easier to perform an officer’s duties effectively. However, when Ms Kalliri’s application to join the force was declined (she is only 1.68m tall), she brought a claim against the police service, arguing that the system unlawfully discriminated against her on the grounds of her sex. 

 The ECJ’s decision This case went up to the European Court of Justice, which readily concluded that the height requirement disadvantaged more women than men. How could you argue otherwise? The question then arose as to whether the Greek police service could show that there was nevertheless sufficient justification for the height requirement to make it lawful. The ECJ acknowledged that certain parts of a police officer’s job would require certain physical aptitudes and abilities. However, others were not influenced by such factors at all. The court was unconvinced that height (or the lack thereof), in and of itself made people less able to perform the duties required of a police officer. Furthermore, the court concluded that less discriminatory methods could be used to identify suitable candidates for the police service, rather than using the blunt instrument of a height requirement. They could devise physical tests that target the particular skills and abilities required of officers. In the circumstances, the ECJ concluded that the height requirement is an act of indirect sex discrimination and is therefore unlawful. 

 Be Careful! This case reminds us that unlawful discrimination can arise in a variety of forms. Some acts will be obvious; others will be less so. On this particular occasion, the height requirement did not specifically seek to reduce the number of women in the police service. However, for obvious reasons, indirectly, this was the effect. Without appropriate justification, unnecessary rules of this nature, which disadvantage people with particular ‘protected characteristics’, can be found to be unlawful. 

If you would like to know more about indirect discrimination, please get in touch. It can be a tricky area of law and we would be happy to help. 

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