Police height requirements are a thing of the past here in the UK. When the first police forces were established in the UK in the 1800’s, most police recruits required to be at least 5 foot 10 inches in height. By September 1990, such a requirement was abolished. However, not all countries have moved away from such a “heightest” regime! The issue was the subject of a recent Greek case that came before the Court of Justice of the European Union (CJEU). The decision still has relevance here in the UK as our own Equality Act is derived from the same European legislation.
The case of Esoterikon v Kalliri (C-409/16) EU:C:2017:767 involved the Greek police academy’s preselection criteria that applied to all candidates looking to join the police. One of the selection criteria required that candidates had to be at least 1.70 metres tall (roughly 5 foot 7 inches) without shoes on. Ms Kalliri was an aspiring police officer who was rejected on the basis that she didn’t meet this requirement, being only 1.68 metres tall. Aggrieved by this, Ms Kalliri raised a claim against this decision in the Greek Courts on the basis that the decision was contrary to the Greek constitutional principle of equality on grounds of gender and contrary to the European principle of equal treatment between males and females.
The matter was referred to the CJEU to decide whether the imposition of a minimum height requirement was contrary to the principle of equal treatment and whether it amounted to indirect discrimination against women. In issuing its decision, the CJEU has confirmed its view that the requirement did indeed amount to discrimination on grounds of gender. From the evidence produced to the Greek courts at an earlier stage of proceedings, it was clear that the height requirement disproportionately impacted upon more women applicants than men.
Indirect discrimination under EU law can be objectively justified if there is a legitimate aim for such a provision or rule and the rule is a proportionate means of achieving that aim. In this case the Greek Government stated that the reason behind the height requirement was to enable effective policing throughout Greece. They argued such effective policing necessitated the possession of certain physical attributes, such as being of a minimum height. This, it was argued, was a necessary and appropriate condition for achieving that aim. The court did not agree, noting that being of a certain height does not necessarily mean that an individual would possess sufficient physical aptitude to carry out effective policing. The court suggested that a more appropriate measure would be a test of the applicant’s physical ability. The court also highlighted that the duties of a police officer could be wide and not all of the tasks involved the need to use physical force. As such, this was another reason why the height requirement could not be objectively justified as being proportionate means.
Although height requirements in employment may not be as common in the UK as other European countries, it is a useful case to remind employers that they should be aware of the policies it puts in place when considering job applicants. In the UK, job applicants enjoy the same protections under the Equality Act as those in employment, therefore equality is something employers should consider when placing requirements on hiring individuals. Should a policy disproportionately affect one gender more than another, it could be found to be in breach of the Equality Act, unless it can provide a legitimate aim for enforcing such a policy.
Where an employer believes any particular rule is necessary, they need to ensure that they have a clear reason as to why it should be imposed. This requires more than a simple preference: the employer should have evidence to show that they are indeed pursuing a legitimate aim. Once that issue has been considered, the employer should then carry out an analysis (and again keep evidence of this) to show no other, less discriminatory rule, could be introduced to allow it to achieve their stated legitimate aim.
