Industrial Tribunals Northern Ireland Decisions

 


Dougan v Royal Ulster Constabulary (01734/98SD Indirect Sex Sex Discrimination) [2002] NIIT 03244_97 (10 January 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 03244/97SD

01734/98SD

APPLICANT: Jo-Anne Dougan

RESPONDENT: Chief Constable of the Royal Ulster Constabulary

DECISION

The unanimous decision of the tribunal is that in respect of each said application the applicant was unlawfully indirectly discriminated against on the grounds of her sex. The applications will be relisted for hearing on remedy.

Appearances:

The applicant appeared in person at the hearing of the applications. Subsequently Mrs M Larkin, Barrister-at-Law, instructed by the Equality Commission made written submissions on behalf of the applicant.

The respondent was represented by Mr P Lewis, Barrister-at-Law, instructed by

Ms M O'Neill, Solicitor, Crown Solicitor's Office.

1. At the commencement of the proceedings the parties agreed that the tribunal firstly should consider the issue of liability and, if necessary, the matter should be relisted for hearing on remedy after the promulgation of the tribunal's decision on liability.
2. The applicant who, when these proceedings commenced, was a full time member of the Royal Ulster Constabulary Reserve claims in her Originating Applications that she was indirectly discriminated against on the grounds of her sex when she failed in her applications to become a full time member of the Regular Royal Ulster Constabulary in 1997 (Competition 'F') and in 1998 (Competition 'G') having on each occasion failed the physical competence assessment. The respondent in its Notice of Appearance has denied that the applicant was unlawfully discriminated against. At the commencement of the proceedings the parties agreed that the applicant's claim was a claim of unlawful indirect discrimination on the grounds of her sex and that no issue of direct discrimination arose to be considered by the tribunal.
3. (i) On 20 August 2001 the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations (Northern Ireland) 2001 came into operation and was therefore in force at the commencement of the hearing of these proceedings. The tribunal was satisfied that, although these applications had been presented to the tribunal before 2001 that regulation 4 of the said regulations, which relates to the issue of burden of proof, applied in relation to these proceedings. (See further regulation 1(2) of the said regulations which makes specific provision for same). The said regulations also provide in regulation 2 for the amendment of Article 3 of the Sex Discrimination (Northern Ireland) Order 1976 and, in particular, provide a new definition of indirect discrimination in employment and certain other cases. The proceedings were conducted on the basis that the said regulations applied and in particular that the new definition of indirect discrimination applied to these proceedings. After the conclusion of the proceedings the tribunal became concerned that this view might not be correct and invited the parties to make submissions in relation thereto. Both parties made written submissions. Mrs Larkin, who had not appeared at the hearing, made written submissions on behalf of the applicant. The tribunal having considered the matter further and, in particular, the said written submissions concluded that regulation 2 unlike regulation 4 did not apply to these proceedings. Regulation 1(2) makes specific provision for the application of regulation 4 to apply to proceedings instituted before the commencement date as well as those instituted on or after that date but that it did not apply in any case in which proceedings were determined before the said commencement date. The regulations make no such provision in relation to regulation 2 and the tribunal is of the opinion that for the regulations to have such retrospective effect that a specific provision, such as seen in regulation 1(2) in relation to regulation 4, would have been necessary. The tribunal noted that in the case of Sonya Smiley –v- Fire Authority for Northern Ireland (Case Ref: 03630/99SD) which was heard between 7 August and 28 August 2001 and was a case of indirect discrimination, the tribunal in a written decision dated 15 February 2002 accepted that since the regulations came into operation on 20 August 2001 that regulation 2 applied to the case, although the proceedings were commenced in August 1999. It would appear from the decision that there was no dispute before the tribunal as to the said application of the said regulation to the proceedings. The tribunal respectfully declines to follow the said decision. The tribunal is not aware of any other decided case on this issue but notes the support given to its decision as set out above in an article by Nick Fairclough, on Indirect Discrimination and the corresponding English provisions, in the Solicitors Journal dated 7 December 2001 page 1126. Both parties in their submission also took the view that regulation 2 did not apply to these proceedings.

(ii) The tribunal therefore determined the issues in this matter on the basis of the definition of indirect discrimination, set out in Article 3(1)(b) of the Sex Discrimination (Northern Ireland) Order 1976, which states:-

3(i) A person discriminates against a woman in any circumstances relevant for purposes of any provision of this Order if –

……………..

(b) he applies to hear a requirement or condition which he applies or would apply equally to a man but –

(i) which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it, and

(ii) which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii) which is to her detriment because she cannot comply with it.

4. There was no dispute between the parties that the obligation placed on the applicant, as a person applying to be a regular member of the Royal Ulster Constabulary, to pass the physical competence assessment was a requirement or condition which the respondent applied to her within the meaning of Article 3(1)(b) of the 1976 Order.
5. The applicant in or about 1992 became a full time member of the Royal Ulster Constabulary Reserve. It was always the applicant's intention to become a full time member of the Regular Royal Ulster Constabulary. Prior to the said recruitment competitions ('F' and 'G') the subject matter of these applications, the applicant had previously unsuccessfully applied to be a full time member of the Royal Ulster Constabulary.
6. In or about September 1997 the applicant, having applied to be as aforesaid a Constable in the Royal Ulster Constabulary was required as part of that recruitment process ('Competition F') to pass a number of tests but in particular the Physical Competence Assessment. For the purposes of this particular decision it is not necessary to consider the other aspects of the recruitment process but they included, inter alia, firearms handling ability tests and medical fitness tests. In or about April 1998 the applicant again applied to be a Constable in the Royal Ulster Constabulary and again as part of the recruitment process (Competition G) was required to pass the Physical Competence Assessment. On both occasions the applicant failed the said Physical Competence assessment and therefore was unable to join the Royal Ulster Constabulary. She continued to be a member of the Royal Ulster Constabulary Reserve through the periods of the said competitions.

The respondent produced relevant data/statistics in relation to a series of similar competitions held in the period 1995 to 1999 but in particular with regard to Competition F and Competition G. The Physical Competence Assessment (PCA) was introduced in 1995 for assessment of the physical competence of applicants to the Royal Ulster Constabulary. Later in this decision the PCA will be considered in greater detail. From the said data, of all the males who sat the PCA in Competition F, 100% passed. Similarly 100% of the males passed in Competition G. However of the females who sat the PCA in the said Competitions, 54% passed in Competition F and 68% passed in Competition G.

7. On the basis of the said figures, which were not disputed by the applicant, the tribunal is satisfied that within the terms of Article 3(1)(b) of the 1976 Order the proportion of women who can comply with the said requirement or condition (i.e. the PCA) is considerably smaller than the proportion of men who can comply with it. Indeed the respondent did not, during the hearing, dispute the said conclusion.
8. Once a condition/requirement has been established and it has been shown that the proportion of women that can comply is considerably smaller than the proportion of men then the applicant must show that it is to her detriment because she cannot comply with it. Failure to pass the PCA clearly was to her detriment since she was unable to obtain the position of Constable in the Royal Ulster Constabulary at the conclusion of each recruitment process. The tribunal was also satisfied that it was to the applicant's detriment because she could not comply with it.

Harvey on Industrial Relations and Employment Law states at paragraph 147:-

"It is now settled that to ask whether women in general or a woman in particular can comply with a requirement or condition is to ask not whether she can physically comply so as to indicate a theoretical possibility but rather is to ask whether she 'can in practice comply', that is according to the 'current usual behaviour of women …. as observed in practice' ….."

In Briggs –v- North Eastern Education and Library Board (1990) IRLR 181 the Northern Ireland Court of Appeal considered that the term 'cannot comply' should not be defined too narrowly. It further held that the term should have the same meaning where it appears, as set out above, in Article 3(1)(b)(i) of the 1976 Order as in Article 3(1)(b)(iii). The two were seen to be the reserve sides of the same test. It would not therefore be sufficient to show the applicant would be, in theory, able to comply with the requirement. A realistic approach required to be adopted to the circumstances at the relevant date, namely the date of the said competitions. The respondent referred to a Physical Fitness Appraisal Report prepared by Dr Gamble of the Human Performance Laboratory of the Physical Education Unit, and Deputy Director of the said Unit, in relation to tests performed on the applicant on 10 December 1998. These were therefore carried out after the dates of the said competitions. This report certainly suggested that based on this data, at that time, there were areas of the applicant's fitness that could be improved with a gradual and incremental programme of exercise. This report referred to areas of improvement but did not suggest that at the relevant date the applicant's compliance was only a theoretical possibility. The tribunal notes that from 1992 the applicant had been a full time member of the Royal Ulster Constabulary Reserve, and had successfully carried out the duties of a Constable in the said Reserve. It was also satisfied that the applicant, prior to each of the competitions, had attended the familiarisation days where she had an opportunity to try out the various tests/equipment to be used in relation to the PCA and had seen the videos showing personnel carrying out the tests and had read the literature accompanying the recruitment package which gave guidance as to how to maximise your chances. It was also satisfied the applicant in the period up to the said competitions had in her pre competition training/gym work tried to improve her level of fitness, in light of the foregoing. Clearly her level of fitness was not in fact sufficient at that time to pass the PCA, as illustrated by her said failure. It has also to be remembered that in Competition F 54% of the females passed and in Competition G 68% of the females passed. There was no evidence before the tribunal that males were, for example, better prepared than females. Indeed there was evidence that females who failed one competition had in later competitions passed the PCA, which may have been due to increased levels of fitness though other factors might also have been relevant including increased familiarisation with the tests. However, in particular there was no evidence that the applicant at the relevant dates could never have achieved the necessary level of fitness to pass the PCA – albeit in fact she had not done so at the date of the said competitions..

In the circumstances the tribunal was satisfied the applicant could in practice comply with the said requirement/condition, and her compliance was not just a matter of a theoretical possibility.

9. In light of the foregoing it was necessary for the respondent to satisfy the tribunal that the said requirement/condition was justifiable irrespective of the sex of the person to whom it is applied. In the case of Hampson –v- Department of Education and Science (1989) IRLR 69 The Court of Appeal made clear that justification required an objective balance to be struck between the discriminating effect of the requirement or condition and the reasonable needs of the person who applies it. Indeed the main thrust of the respondent's defence to the applicant's claim related to this issue and the respondent's contention that the said requirement/condition was justifiable within the terms of the said test. In a recent decision, Allonby –v- Accrington and Rossendale College (2001) IRLR 364 Sedley LJ at page 370 stated- "once a finding of a condition having a disparate and adverse impact on women had been made, what was required was at the minimum a critical evaluation of whether the college's reasons [for imposing a condition] demonstrated a real need to dismiss the applicant; if there was such a need, consideration of the seriousness of the disparate impact of the dismissal on women, including the applicant and an evaluation of whether the former were sufficient to outweigh the latter."
10. The respondent had for some time prior to 1988 been looking at the issue of physical fitness standards for police officers, not only with regard to general operational fitness of serving officers but also in particular at the recruitment stage. In 1980, for example there was no fitness standard required by the respondent in order to gain entry into the Police. Entry at that time was by interview. The respondent began a large capital investment programme in relation to Sports Hall facilities for use by operational police officers, but also the equipping of fitness rooms in individual police stations for use by such officers. At the same time a Physical Education Unit was set up and developed over the following years. The said Unit whilst developing specific physical tests for use by specialised units within the Royal Ulster Constabulary also began to consider the need for some sort of physical fitness standard for recruits.

In or about 1988 the Unit developed a gender specific test under which a different standard/protocol was required to be achieved by males in comparison to females. In general terms it required new recruits to do a number of physical exercises, e.g. push ups, but had not been designed with any regard to the work such a recruit would require to carry out as a beat and patrol officer. The Unit wished to devise a test that would bear proper relation to what such a beat officer is required to do. And with this in mind an expert working party was set up by the Unit to devise a new job related test for the respondent. External Consultants as well as representatives from the respondent's Equal Opportunities Unit, the Superintendents Association, the Police Federation, under the overall guidance and direction of the Director and Deputy Director of the PE Unit, contributed to the report. The report's findings subsequently became the basis for the PCA which was used in Competition F and G, the subject matter of this application.

It was recognised, throughout the proceedings before the tribunal, by the respondent that gender specific tests as originally introduced by the Royal Ulster Constabulary as set out above could result in successful claims for unlawful indirect discrimination on the grounds of sex. In the English tribunal decision of Alcock –v- Hampshire Constabulary (unreported) – a male police officer applied for a post in the dog section and was required to take a gender specific fitness test. He failed whereas a female, given the different pass mark, would have passed. It would appear the test used by Hampshire Constabulary, using different fitness criteria for male and female police officers, was very similar to the gender specific test originally devised and operated by the respondent. Hampshire Constabulary raised the defence of justification and in particular that female police officers would suffer an unfair disadvantage if they were required to complete the test run in the same time as male officers, because men have greater aerobic and anaerobic potential than women. However, it was held that in failing to conduct a general neutral test to establish whether a particular candidate is capable of undertaking the duties of dog handler the said police force had unlawfully indirectly discriminated against the applicant on the grounds of his sex.

The applicant also at no time in her evidence made any criticism of the principle, that any such test to be adopted should not be gender specific but should be the same test for both male and female, designed in so far as possible, to replicate the work to be carried out by a beat and patrol officer in the Royal Ulster Constabulary. Indeed, the applicant further made no criticism of the nature of the actual tests themselves which constituted the PCA she was required to sit but rather the standard that was set which had to be achieved by both male and female recruits.

The tribunal was satisfied that considerable relevant research was carried out by the working party as to the most appropriate type of test to be adopted. This research involved consideration of tests used by police forces in different jurisdictions and the relevance of such tests to a proper measurement of occupational competence. The tribunal has no doubt that the working party was correct not to adopt gymnasium/laboratory tests but rather to use purpose-designed job related assessments based on abilities and work patterns required for safe and efficient job performance. It rejected, in light of the above, the test that was used by most police forces in the United Kingdom and which had developed from the RUC's own gender specific test referred to above. The standard gender-specific national test was based on performance in a combination of gymnasium type tests, ending with a timed test of maximal running endurance. A separate pass mark was calculated for males and females. However, the conclusion of the working party was that it did not properly assess an individual's actual ability to perform the role of a police officer – whose role is often sedentary in nature but which pattern can often be interrupted, without warning by the requirement for physical demand. The research showed that police forces in Canada and the USA (Californian Highway Patrol) and Australia (Victoria) had introduced various types of job related assessment procedure.

The working party then devised a gender neutral but job related tool that would allow it to assess an individual's actual or inherent physical ability to perform the critical tasks involved in police duties as a beat and patrol officer and allowed the respondent to make informed decisions regarding suitability for employment. The tribunal recognises that the work carried out by the working party was very detailed and carefully considered and researched and the report upon which it is based gives considerable support to the respondent's defence of justification. The working party drew up a random sample from the full complement of full time Constables and Sergeants within beat and patrol. Of the 2,730 (2,426 male and 304 female) eligible Beat and Patrol Officers in the RUC 538 were randomly selected for the project, representing a sample size of approximately 20%. Of these 308 were male and 230 were female. This clearly gave a proper sample to take account of possible geographical and gender differences.

These sample officers were then interviewed and a working framework was designed for use by the interviewer. The tribunal is satisfied that the interviews were properly carried out and left the working party with a detailed list of typical activities routinely performed by beat and patrol officers. It was then necessary to design an objective measure to test the ability of a candidate to perform the said duties, which it did so after carrying out further research, including further comparative research in other jurisdictions. In essence, the working party devised two methods for assessing the said physical fitness of the candidates, based on the job carried out by the beat and patrol officer as ascertained above.

(a) a circuit which involved a candidate carrying out a number of exercises which were designed, in so far as possible, to replicate actions which such an officer would be required to carry out in the course of his/her work; and

(b) a push pull device which involves the assessment of the pushing and pulling strength of such an officer.

11. The circuit, and the push pull device to which further reference shall be made below, were validated. The circuit was validated by using two separate groups of in-service officers. The exercises were performed to test if the components of the proposed assessment tool were content and criterion valid and to collect normative data. Of particular importance to the working party was the acceptance of the circuit tests as a reasonable reflection of beat and patrol duties. The working party also gave the in-service officers an opportunity to play a major part in the setting of pass marks for both disciplines. The circuit test was then tried out on officers scheduled to attend divisional schools of instruction over a two-week period. These were officers who performed both urban and rural policing. They were given little prior notice of the assessment but were briefed to bring training clothing with them to the school. All officers attending the school volunteered for the validation exercise, though 5 were screened out for medical reasons. Each officer was taken individually and shown the circuit and given a full explanation of the procedure. They were asked to give comments regarding the elements of the test and were also given the opportunity to suggest practical pass marks based on their performance and knowledge of policing patterns. Again there seems to be no dispute by the male and female officers involved in the validation exercise of the circuit that all activities properly reflected, in so far as is possible within such an exercise, the core activities and competencies of officers carrying out such beat and patrol work.
12. The crucial finding in this exercise, in the view of the tribunal, was that the average time to complete 3 laps for 97 male officers was 3 minutes 6 seconds compared with 3 minutes 54 seconds for 13 female officers. Males and females were also asked the question –

"You have recently completed 3 laps and have been allocated a total finishing time. Taking into account your perception of the demands of your job and your current fitness status we would like your opinion of a recommended time that this test should be completed in order to test the competency of a police officer to carry out his or her duties safely and effectively?".

87% of the participants answered this question – Male officers suggested that the circuit should be completed in 3 minutes 25 seconds and females 3 minutes 37 seconds. This suggestion has to be contrasted with the actual findings set out above and in which the males have suggested a time of 19 seconds greater than the average actual time of the males; whereas the females have suggested a decrease of 17 seconds. The reason for this was never satisfactorily explained but in particular the suggested times were never tested to see if the views were correct. At all times they remained suggestions. There was no dispute that in any gender neutral physical test such as this there would be differences between the times taken by the males and time taken by the females in view of the physiological differences between the males and the females. Both male and female officers were required to do the same job. In light of the foregoing, and this was a problem the working party were acutely aware of, whatever standard was set and which was to be applicable to both male and female, depending on where it was set it had a potential discriminatory effect. Based on this information the working party concluded that a circuit time of 3.30 for males and females would have been reasonable. However, considering the small imbalance in the sample and the problems of implementing a new assessment system the working party decided in its report to be cautious and recommended a circuit time of 3.45. It did however suggest also that the effect of this time should be monitored on participants with the view to collect more information and justification, with the ambition to lower the cut off point to 3 minutes 30 seconds. Dr Gamble admitted in evidence the said pass mark of 3 minutes 45 seconds was 'plucked from the air'. Mr Henderson the Director of the unit who appears to have taken the final decision admitted it was a matter of judgement – subjective judgement.

13. In addition to the circuit, the working party also recommended that a push/pull device be adopted. Again there was considerable research carried out including use of other machines used in other jurisdictions and experiments many of which were watched by operational officers to ensure that it accurately replicated the job of a beat and patrol officer and could, in particular, properly assess the push/pull strength required in their job. On occasions this involved a pushing and pulling task such as in public order situations, but also in pushing and pulling a variety of inanimate objects e.g. cars, security doors. It can be a critical task which, albeit not encountered very frequently, must be done competently. As a result of this work a push/pull device unique to the respondent was developed by Dr Brendan Austin, a Consultant Engineer. This device is a computer operated isokinetic (contact speed machine) which measures the ability to push and pull. The device was engineered to a high level with a guaranteed (subject to annual calibration) accuracy of better than 1%. It, in essence, mimics the whole body pushing and pulling in a horizontal plane. The working party rejected other machines, since these only measured upper body strength. The above device was, like the circuit, validated which included ascertaining that the above test appropriately replicated the job of the beat and patrol officers and including assessment of the optimal handle height on the machine.

Again a voluntary sample of beat and patrol officers from another division was selected to assess the push/pull device. 88 males and 24 females agreed to participate. The results of 20 seconds pushing and pulling suggested there was a disparity between the force applied by males and females with males exerting an average of 399N compared to 232N for females. Newtons are the relevant units of force and one unit is approximately equivalent to 9.81 kg. Research and data collection from task analysis ascertained that confrontation usually involved pushing and pulling a 78kg (168lbs) individual. This was often carried out by two officers, which could be male/female or male/male or female/female. It appeared that these results corresponded with average N.I. male weight and therefore the working party concluded was a reasonable weight on which to base the RUC standard. It found a combined grappling force of 550 Newtons was required to move a 78kg individual. As two officers are normally involved in this type of manoeuvre the working party concluded in light of the said validation exercise a force of 275N would seem appropriate as a standard for grappling force, though it endorsed a cautious standard of 235N (25kg/f).

14. In addition to the above recommendations of the working party there was also introduced a compensation scheme to allow a marginal fail in one part of the test to be compensated by a proportionate bettering of the standard in the other discipline. The net effect of the said scheme is that, for example, a circuit standard of 4 minutes 7 seconds can be accepted if a candidate achieves a push/pull score of 27.5kg/f or better. Equally, for example, push pull score of 22.5kg/f will be acceptable as long as a circuit time of 3 minutes 22.5 seconds is achieved. The maximum level of compensation was 10% and if a candidate failed both elements they could not compensate for these deficits.
15. The working party report was endorsed by the Chief Constable and his Chief Officers Policy Group and the PCA, as recommended by the working party, as set out above, was introduced in 1995 for assessment of the physical competence of RUC applicants. It was intended that ultimately all officers would be required to do such a PCA but at present it has only been applied to applicants at the initial recruitment stage. After acceptance by the respondent recruits carry out further assessments of their physical fitness. Mr Henderson suggested in evidence that after recruits complete their police training course their fitness improved by approximately seven percent.
16. Since the introduction of the PCA in 1995 the basic format of the tests and the relevant 'pass marks' as set out above have remained unaltered. Considerable data from the various competitions, which have been held since the introduction of the PCA, has been obtained on an ongoing basis culminating in a detailed report prepared in 1999 on the impact of the Job Related Physical Competence Assessment on Recruitment. Of course, this report was not available at the date of the said competitions. Subject to one matter addressed below the respondent has not considered, on the basis of the ongoing monitoring of the data from the various competitions any change was merited or required. Change to the format of the tests was however introduced in 1996. It introduced a familiarisation day for female candidates only some 10-12 weeks before the date of testing in which they get an opportunity to try out the equipment and attempt those aspects of the test which they wished to try.

Dr Gamble denied in evidence that there was any connection between this change and the criticism contained in the 1996 Primary Inspection Report of the Royal Ulster Constabulary by Her Majesty's Inspectorate of Constabulary where he referred in paragraph 4.21 to the decrease in the percentage of women appointed in the new recruit intakes in February and June 1996 and that the reason for same was that "a new physical fitness test recently devised by the physical education unit appears to be failing a disproportionate number of female recruits. He urges a reconsideration of the wider issues of this subject. He also suggests recruiting literature is examined to ensure it is realistic in reflecting the true demands of policing and therefore the requirement for physical fitness". Mr Henderson, as Director, said that whilst the Inspectorate had taken the view that the test was the reason for the said decrease he did not agree. He stated that whilst the recommendations of the Inspectorate were highly persuasive the respondent was not required to act upon them. He indicated that at this time another part of the recruitment process was altered – the ability test (or academic test), to improve the overall prospects of females successfully applying to the Royal Ulster Constabulary and indicated that as part of an overall review of the matter the familiarisation day was also introduced; he believed on the advice of the Equal Opportunities Unit of the RUC. He did accept however that, despite the fact that the familiarisation day had been introduced, when the applicant took part in Competition F and G it was a fact that only 54% of females were successful in Competition F and 68% of females in Competition G, whereas 100% of males in both competitions had been successful. He also accepted that in Competition C in 1995/1996 38% of the females had been successful whereas 100% of the males had passed. Mr Henderson pointed out that since the introduction of the test in 1995 the percentage figure of females who were successful had risen from 38% in Competition C to a figure of 85% in 1999 in Competition I, which latter competition was subsequent to the competitions the subject matter of this application. Neither Dr Gamble nor Mr Henderson took the view that the familiarisation day was the sole reason for the said increase but one of a number of factors, which could be playing their part. There was, for example, increasing awareness of the standards required but also in their view there were fitter female applicants applying for police service.

17. The tribunal was fully satisfied in light of the foregoing that the introduction of a job related PCA was justifiable. It was also satisfied that the respondent had shown that the specific tests introduced, namely the circuit and the push-pull device were justified. Given that the PCA was to be job related with the same standard to be achieved by both male and female, and not gender related with a different standard for male and female, the tribunal fully recognised that given the physiological differences between males and females there was clearly scope for a discriminatory effect to exist. As was seen in Competition F and G, the competitions, the subject matter of this application, which were held at the time when the familiarisation day had already been introduced some 46% of females were unsuccessful in Competition F and some 32% of females were unsuccessful in Competition G. This remained in the tribunal's view a considerable discriminatory effect, which required to be justified having balanced the said effect and the reasonable needs of the respondent. Given the said discriminatory effect it was therefore necessary to look at the various constituent parts of the PCA, which as seen above comprised both the circuit/ push-pull device. In the view of the tribunal the respondent failed to justify the said discriminatory effect of the PCA, with particular regard to the standard pass mark applied to the circuit part of the said assessment. Indeed, by the conclusion of the case, the main focus of the applicant's submissions to the tribunal related to the said standard on the circuit, as indeed it had been during the course of her evidence. Criticism could be made of the standard required in relation to the push pull aspect of the said assessment. However, in the tribunal's view any such criticisms would be of insufficient relevance in applying the said test relating to justification. The push pull device as devised and subsequently manufactured was an extremely accurate machine that had been designed in so far as possible to replicate that aspect of the work of a beat and patrol officer and the relative strengths required. There was no dispute that the combined grappling force of 550N was required to move a 78kg individual. Since two officers were required to carry out this manoeuvre there was considerable force in the respondent's contention that a force of 275N would therefore be an appropriate standard for grappling force. Whilst the figures obtained from the sample of officers who carried out the task showed males exerting an average of 399N compared to 232N for females the tribunal could see considerable merit in the judgement exercised in applying a standard of 245N. It bore a close relationship to what was needed to be done and was still in line with the figures actually achieved by female officers. This was a critical task, which would be done with another officer, who in fact might be male; however it was a task, however infrequently it might arise, had to be done competently. It seemed to the tribunal, in light of the foregoing and given that under the job related PCA the standard had to be the same for male and females, the respondent by applying the above standard in so far as it was able to do so properly balanced the discriminating effect, which clearly existed, with the reasonable needs of the respondents.
18. The said discriminatory effect of the PCA was, since the introduction of the PCA known to the respondent and in particular Mr Henderson and Dr Gamble of the PE Unit. There had been criticisms from Her Majesty's Inspectorate of Constabulary. The familiarisation day had been introduced on the advice of the Equal Opportunities Unit but despite same there still remained the said discriminatory effect which in the tribunal's view was considerable. Despite the knowledge of the said discriminatory effect no change had been made to the standard, which was set, at the introduction of the PCA for the circuit. Given the wish to make the PCA a job related assessment the respondent quite properly in the tribunal's view attempted to validate the said circuit test by using serving beat and patrol officers. Those times confirmed the said discriminatory effect, given that the 97 male officers on average took 3 minutes 6 seconds whilst the 13 female officers on average took 3 minutes 54 seconds. These were the only actual times obtained by the respondent of how long it would take to carry out the circuit. These were times by beat and patrol officers whose jobs the test was trying to replicate for the purposes of assessment.

In the tribunal's view these times were of critical importance in carrying out the required balancing exercise by the respondent. Despite obtaining the above figures the respondent then asked the same officers for suggested times for the standard time for the circuit to be completed. These were at all times only suggestions and, significantly, in the tribunal's view were never tested; particularly given the reliance placed upon them by the respondent in setting the standard but also the differences from the actual times recorded. Despite the fact that the average actual male time was 3 minutes 6 seconds and the suggested time was 3 minutes 25 seconds, and the average actual female time was 3 minutes 54 seconds and the suggested time was 3 minutes 37 seconds those serving beat and patrol officers who made the said suggestions, which was in fact only 87% of the participants, were not asked why they were making such suggestions in light of the actual times. Significantly neither these officers nor any other group of serving beat and patrol officers were asked to demonstrate that these suggested times were in fact more likely to reflect a more accurate time and therefore a better basis for determining the said standard. It was clear from the report and the evidence of Mr Henderson and Dr Gamble that in arriving at a circuit time of 3 minutes 30 seconds, which the working party considered reasonable, the time between the male and female suggested times had been averaged – though strictly this would have been 3 minutes 31 seconds. Given every potential second could be important in this type of exercise the tribunal was concerned by this willingness to round such figures down.

It was clear in any event that if the standard of 3 minutes 30 seconds was set, on the basis of the average actual figures achieved, most of the females (allowing for the fact of averages) would have been unlikely to be successful whereas all of the 97 males would have been successful. Using the suggested, but untested figures, again all the said males would be successful, but the said females would still be unsuccessful.

Dr Gamble in his evidence admitted the figure of 3 minutes 45 seconds had been 'plucked from the air' whereas Mr Henderson, who took the final decision, said it was a matter of subjective judgement. In the tribunal's view this was not sufficient. In applying such a standard of 3 minutes 45 seconds it was still some 15 seconds greater than the average figures referred to above. It was clear that by using such a standard all males would still be able to achieve the standard. However it clearly placed considerable difficulties in the way of females who on the average actual figures could only be successful in the time of 3 minutes 54 seconds. If the suggested female figure of 3 minutes 37 seconds was a proper guide, which the tribunal could not accept in the absence of proper testing, then clearly there was more merit in the standard of 3 minutes 45 seconds; it would have borne in those circumstances a closer relationship to the times taken by serving female beat and patrol officers. In the tribunal's view the only relevant figures were those of the 13 female officers who on average took 3 minutes 54 seconds, some 9 seconds greater than the standard set under the PCA. In the tribunal's view, in the absence of any attempt by the respondent to test the said suggested figures, the tribunal could not be satisfied the said standard had been properly justified. The Circuit was an essential element of the PCA and the failure to justify, as set out above, the standard to be applied to this element meant in the tribunal's view that the PCA itself, the said requirement and condition, had not been properly justified. The fact that the push pull element, the other element in the PCA, was able in the tribunal's view to be justified was not sufficient to save the said requirement/condition. The PCA, which had given rise to the discriminatory effect had the two said elements which in essence were separate exercises designed to assess different matters. Both elements, subject to the compensation scheme required to be passed. However the said scheme did not operate where both elements of the assessment had been failed and, in any event, was only relevant at the margins and the maximum permitted level of compensation was ten per cent.

19. The tribunal therefore finds in the circumstances that the applicant has been unlawfully indirectly discriminated against by the respondent on the grounds of her sex. The applications will be relisted at a later date for a hearing on remedy.

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Date and place of hearing: 22-24 October 2001, 29 November 2001, 6 December 2001 and

10 January 2002, Belfast

Date decision recorded in register and issued to parties: