This case highlights the differences between biological men and biological women, including women having lower average muscle mass, a higher percentage of body fat and smaller hearts and lungs.
A Ministry of Defence (MOD) Police officer who was dismissed after failing a fitness test has won an employment tribunal.
Koren Brown, who joined the force in 2015, failed a fitness test called the ‘bleep test,’ which involves running at increasing speed.
The tribunal found this test would be more difficult for women due to biological differences including women having lower average muscle mass, a higher percentage of body fat and smaller hearts and lungs.
Despite repeatedly failing the test, the tribunal found Brown had not been given the opportunity to formally attempt a different test called the ‘Chester treadmill test,’ which involves running on an increasing gradient.
While she was allowed to try it once as practice, she struggled to balance and was not given any guidance or alternative training recommended by College of Policing guidelines.
Brown was dismissed in October 2018.
The tribunal concluded that she was indirectly discriminated against as she was not allowed to take the alternative test or given the support recommended.
Indirect discrimination is the legal term that describes situations when policies, practices or procedures are put in place that appear to treat everyone equally but, in practice, are less fair to those with a certain protected characteristic under the Equality Act 2010.
The BBC has reported that the MOD plans to appeal.
Aisling Foley, solicitor in the employment team at SAS Daniels, told HR magazine employers should consider how any physical fitness tests or physical aspects of a job might adversely affect or disadvantage an employee with a protected characteristic.
She said: “As the tribunal found, male employees would be more likely to get a higher fitness test result. This could result in a woman being unfairly disadvantaged in comparison with her male colleagues if her test results were compared with theirs.
“This could also be the case for an employee with a disability.
“If there was a physical aspect they struggled to do because of their medical condition, they could be seen as having been discriminated against if steps were not taken by the employer to adjust those aspects of the job accordingly.”
Matt Jenkin, head of employment law at Moorcrofts, said employers should make sure any fitness requirements are truly necessary for a job as well as how they are applied.
Speaking to HR magazine, he said: “In this case, the tribunal accepted that the fitness levels required, demonstrated via the dreaded bleep test, were proportionate.
“However, the MOD didn’t apply the test in a proportionate way, and in particular hadn’t given proper thought to alternative tests that could demonstrate the required fitness levels.
“As such, employers who have their own fitness requirements need to consider not only whether those requirements are needed but how employees can demonstrate these fitness requirements.”
A spokesperson for the MOD said: “We note the verdict of the tribunal and it would be inappropriate to comment further on continuing legal proceedings.”
