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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Dougan v Royal Ulster Constabulary (01734/98SD Indirect Sex Sex Discrimination) [2002] NIIT 3244_97 (10 January 2002) URL: http://www.bailii.org/nie/cases/NIIT/2002/3.html Cite as: [2002] NIIT 3244_97 |
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Dougan v Royal Ulster Constabulary (01734/98SD Indirect Sex Sex Discrimination) [2002] NIIT 03244_97 (10 January 2002)
CASE REF: 03244/97SD
01734/98SD
APPLICANT: Jo-Anne Dougan
RESPONDENT: Chief Constable of the Royal Ulster Constabulary
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.
(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.
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.
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.
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.
"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.
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).
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.
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.
____________________________________
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: