Ms K Brown v Ministry of Defence Police and others: 4102885/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4102885/2019

Venue Aberdeen

Hearing 14 June 2019

Between

Ms K BrownClaimant

Ministry of Defence PoliceRespondent

Before

Employment Judge J Hendry

Date 8 August 2023

JUDGMENT

The Judgment of the Tribunal is that the application by the Third Respondent to set aside the Order of 24 October 2019, as amended on 12 February 2020, is refused.

REASONS

[1]On 16 October 2019, the claimant’s solicitor applied to amend the claim to add the College of Policing Limited (“COP”) to the proceedings as an additional respondent. His e-mail of that date, along with the amended “Grounds of Complaint” are referred to for their terms. In short, he sought to pursue a complaint of indirect sex discrimination, contrary to s.19 of the Equality Act 2010 (“the 2010 Act”); and a complaint that COP, “instructed, caused or induced indirect sex discrimination”, contrary to s. 111 of the 2010 Act.

[2]On 24 October 2019, I issued an Order adding the COP as an additional respondent. On 12 February 2020, I issued an amended Order in which I narrated that the Order had been issued in response to an application by the claimant’s solicitor.

[3]On 25 November 2019, COP’s solicitor submitted an ET3 response form in which, inter alia, she intimated her objection to COP being sisted as a respondent, asserted that the Tribunal did not have jurisdiction and applied to have COP released from the proceedings.

[4]I conducted a Preliminary Hearing to consider case management, and in particular the sisting of COP, on 17 January 2020. With the agreement of the parties, I decided that I would consider and determine the issue, “on the papers”. In other words, on the basis of written submissions on behalf of the parties. The Note which I issued to the parties on 23 January 2020, following the case management Preliminary Hearing, is referred to for its terms. As there had already been a claim against a Second Respondent which had been dismissed, I decided, to avoid any confusion, that COP would be designated as the Third Respondent which meant that the claim would be against a First and Third respondent. Third Respondent’s submissions

[5]COP’s solicitor made written submissions by e-mail on 31 January 2020. These are referred to for their terms. She applied for the Order of 24 October 2019, as amended, to be set aside under Rule 29, in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules of Procedure”) and for the Third Respondent to be removed as a party to the claim. Time-bar

[6]COP’s solicitor submitted that the Tribunal did not have jurisdiction to consider the amendment whereby the Third Respondent had been sisted as a respondent as there had been a failure to comply with Rule 12(1)(a) of the Rules of Procedure. She submitted that the claim should be struck out under Rule 37(1)(c): “for non-compliance with any of these Rules or with an order of the Tribunal”.

[7]So far as the indirect sex discrimination complaint was concerned, it was submitted that, “the deadline to commence EC, was 28 November 2018”.

[8]So far as the s.111 complaint was concerned, “the deadline was 13 February 2017”. It was submitted, therefore, that the ET1 claim form was lodged, “25 months later” and the application to amend, to introduce the s111 complaint, “was made 31 months later”.

[9]The Third Respondent’s solicitor then addressed the “just and equitable” discretion which the Tribunal has in s.123(1) of the Equality Act 2010 (“ the 2010 Act”). She submitted that, “extension should be the exemption rather than the rule”. She then addressed a number of factors. “The length of and reasons for the delay”

[10]The Third Respondent’s solicitor understood, “that the claimant will argue her reason for the delay is (sic) bringing the claims against the Third Respondent is that the First Respondent confirmed that complying with the Third Respondent’s standards was a legitimate aim on 15 August 2019”. However, she submitted that, “it is clear from the ET1 that the claimant’s representatives were aware at the time of submitting the ET1 that the First Respondent may argue that they are required to comply with the Third Respondent’s standards.”

[11]She further submitted that, “the decision not to make factual averments which would support a claim against the Third Respondent or to pursue a claim against the Third Respondent was deliberate”. Although, “the facts which were in existence at the point at which the claimant lodged her ET1 and certainly at the point where the ET3 was submitted was sufficient to put her, or her representatives, on notice of the possibility of a claim against the Third Respondent. The claimant, or her representatives, chose not to commence EC and bring any claims against the Third Respondent”.

[12]In conclusion, the Third Respondent’s solicitor submitted that:- “The claims being advanced against the Third Respondent were out of time even had they had been included in the original ET1. They were ultimately brought against the Third Respondent 2 years and 11 months after the claimant became aware of the Third Respondent’s fitness standards (being followed by the First Respondent). They were made 12 months after dismissal for not achieving that score. They were made 7 months after they submitted their ET1. They were made over 5 months after they received the First Respondent’s ET3. They were made 2 months after they were reminded of the First Respondent’s position by e- mail.” “Other factors”

[13]The Third Respondent’s solicitor accepted that the cogency of the evidence was unlikely to be affected by the delay.

[14]She submitted that the Third Respondent had co-operated with any request for information. She further submitted that, “the claimant was aware of the Third Respondent, its fitness standards and the potential impact upon her from the outset of her employment. She also had those matters in mind at the time of submitting her claim. Even after receiving the First Respondent’s ET3 defence, she did not act promptly. No explanation has been offered for the failure to submit the claim on time or for the subsequent delay. The claimant has been represented throughout the entirety of her claims. To refuse the amendment would not leave the claimant without a remedy as she has an existing claim in the Tribunal against the First Respondent and, if appropriate, a claim for negligence against her legal representatives”.

[15]The Third Respondent’s solicitor submitted that the case of Drinkwater Sabey Ltd v Burnett and Another

[1995] ICR 328

EAT, which was relied on by the claimant as authority for joining another respondent, even after the time limit has expired, could be distinguished from the present case. She also referred to Gillick v BP Chemicals Ltd

[1993] IRLR 437

, which was followed by the EAT Drinkwater.

[16]While the Third Respondent’s solicitor accepted that the EAT in Gillick held that, “there is no time limit which applies as such when it is proposed to add a new or substitute respondent to an originating application which has been lodged timeously”, she submitted that the present case fell to be distinguished. She submitted that:- “…. the claim being advanced against the Third Respondent is very different. It is not simply being added as an additional party to an existing timeous claim. The indirect discrimination claim is unclear as there would be no logic behind the assertion that the Third Respondent applied the PCPS that are relied upon in the claim pursued against the First Respondent and we await clarification of the basis of that claim. The Section 111 claim is, however, clear. The Section 111 claim is, of necessity, entirely different to the claim that was brought against the First Respondent. The submission of a claim against one respondent timeously does not and should not allow a Claimant to then amend and pursue an alternative claim against an alternative Respondent – and particularly not when that claim would have been out of time even had it been included in the originating application.” “Early conciliation”

[17]The Third Respondent’s solicitor submitted that the claimant had failed to comply with the Early Conciliation rules and that the claims against the Third Respondent should be struck out under rule 37(1)(c) of the Rules of Procedure.

[18]In support of her submission she referred to Science Warehouse Ltd v Mills

UKEAT/0224/15

. In short, she submitted that “the matter in issue is entirely different to that on which there was EC… we consider that this extends beyond adding an additional respondent to an existing claim and we consider that EC is required. The amended claim is outwith the matter originally conciliated on and, as such, EC requirements have not been met”. “Was the claimant aware of the possibility of the claim against the Third Respondent?”

[19]The Third Respondent’s solicitor submitted that the claimant was aware of this, but “chose not to commence EC.”

[20]She accepted, on the basis of Mist v Derby Community Health Services NHS Trust UKEA/0170/15, that seeking to add a respondent to an existing claim does not require Early Conciliation in respect of a new respondent. However, she submitted that that was not the position in the present case, “at least in relation to the Section 111 claim”. She submitted that, “Mist is not authority for the view that a new claim can be brought against a new Respondent without the need for EC”. “Prospects of success Claim that the Third Respondent indirectly discriminated against the Claimant”

[21]The Third Respondent’s solicitor submitted that:- “The Claimant alleges that the First Respondent applied certain PCPs to the Claimant. She does not, even in her amended claim, allege that the Third Respondent applied any PCPs. The Third Respondent did not employ or provide services to the Claimant and so could not apply any PCPs to her. The amended claim is entirely without prospects of success.” “Claim that the Third Respondent instructed, caused or induced discrimination”

[22]The Third Respondent’s solicitor submitted that:- “The Claimant denies that “the MDP is required to have a College of Policing Licence in order to lawfully deploy AFOs and/officers”. The Claimant’s esto position is: “by requiring the MDP to apply the PCPs the COP unlawfully instructed, caused or induced indirect sex discrimination contrary to s.111 of the EqA 2010”. Therefore the Section 111 claim would rely upon a finding in fact that the Third Respondent had “required” the MDP to apply the PCPs. That is a factual position which no party offers to prove. Indeed it is a factual position which the Claimant expressly states is not the case. The Third Respondent, in agreement with the Claimant, expressly denies that it placed a requirement upon the First Respondent. The First Respondent does not suggest that the Third Respondent placed a requirement upon it. There is, on the face of the pleadings, no prospect of the Tribunal concluding that the Third Respondent imposed the requirement necessary for the s.111 claim to be successful. Therefore, the Claimant’s case proceeds on a hypothetical basis which is contrary to the Claimant’s position and which no party offers to prove.”

Summary

[23]Finally, the Third Respondent’s solicitor said this, by way of summary:- “The Order should be set aside as it was made without the Third Respondent having the opportunity to make representations and there is no indication that the relevant factors were considered and no written reasons have been provided. Further, when the relevant factors are considered, the amended claim should not be allowed to proceed because:- In connection with the indirect discrimination claim, it does not allege that the Third Respondent applied any PCPs to the claimant. (The Third Respondent was not in a position to apply PCPs to the claimant). That claim cannot, therefore, succeed. In connection with the Section 111 claim, it relies upon a finding in fact which the claimant and the Third Respondent agree is incorrect and for which the First Respondent does not argue. The Section 111 claim is an entirely different claim to the claim advanced against the First Respondent. There was no EC on that matter. The Claimant was aware of the Third Respondent’s role and of its fitness standards at the outset of her employment with the First Respondent. She did not pursue the Section 111 claim at that stage. The Claimant deliberately chose not to pursue a Section 111 claim against the Third Respondent at the time of lodging her original ET1 – apparently because she accepted then, and still maintains now, that the facts don’t support such a claim. Even at the time of lodging her ET1, the Section 111 claim would have been long out of time. The Claimant did not act promptly at the various stages following the ET1 being lodged. No explanation has been offered for the original delay or the continued delay. An extension should be an exception. If appropriate, she has recourse against the advisers who have been appointed from the outset of the claim. However, in fact, the Claimant will continue to be in a position to pursue the claim she chose to pursue and the claim that she truly argues in favour of – being a claim against the First Respondent alone.” Claimant’s submissions

[24]On 14 February 2020, the claimant’s solicitor made written submissions. His e-mail of that date is referred to for its terms.

[25]In support of his submissions he referred to the following cases:- Drinkwater Trimble and Anor v North Lanarkshire Council and Anor

EATS/0048/12

Woodhouse v Hampshire Hospitals NHS Trust EAT 0132/12 Selkent Bus Company v Moore

[1996] ICR 836

Abercrombie and Ors v Aga Rangemaster Ltd

[2014] ICR 209

CA Mist NHS Trust Development and Anor v Saiger

UKEAT/0167/15

[26]He first set out the “procedural history” of the case. He referred, in particular, to the e-mail of 15 August from the First Respondent’s solicitor in which he detailed the “respondent’s legitimate aims”. One of these was, “Comply with College of Policing standards”. The claimant’s solicitor explained that the claimant’s primary position in relation to that particular legitimate aim, “is that the First Respondent is not required to have a College of Policing licence in order to lawfully deploy its armed officers (see paragraph 44 of the Grounds of Complaint), but given that the First Respondent was expressly asserting a contrary position (and relying upon this as a legitimate aim) it was decided that in order to fully protect the claimant’s position an application should be made to add the College of Policing to the proceedings.”

[27]Accordingly, “by the Amended Grounds of Complaint, the Claimant brought an indirect sex discrimination complaint against the Third Respondent and also a complaint that the Third Respondent unlawfully instructed, caused or induced indirect discrimination contrary to s.111 of the EqA. Paragraph 44A of the Amended Grounds of Complaint states as follows: “Alternatively, if MDP is required to have a COP licence in order to lawfully deploy AFOs and/or armed officers and/or if it was a legitimate aim of MDP to comply with COP standards (which is denied) the Claimant avers that by requiring the MDP to apply the PCPs the COP unlawfully instructed, caused or induced indirect sex discrimination contrary to s. 111 of the Equality Act 2010.”

[28]It was submitted therefore, that the claimant was thus asserting an “esto position, in the event that the claimant’s primary argument is not successful”. “Law”

[30]The claimant’s solicitor referred in his submissions to the general discretion to amend claims under Rule 29.

[31]He also referred to Rule 34 which provides that, at any time either on its own initiative on the application of a party or any other person wishing to become a party, a Tribunal has power to add any person as a party by way of substitution or otherwise. He submitted that the appropriate test to be applied is whether there are “issues between the person to be joined and any of the existing parties”.

[32]In support of his submissions in this regard he referred to Drinkwater which he submitted was authority for joining another respondent, even after the time limit for bringing a fresh claim has expired. In that event, the party joined can apply under Rule 30 for the Order to be varied or revoked under Rule 29. Amendment

[33]The claimant’s solicitor submitted that the same principles applied to an amendment to add a party to a claim as to any other sort of amendment. He referred to the, “careful balancing exercise of all the relevant factors, having regard to the interests of justice and to the relative hardship that would be caused to the parties by granting or refusing the amendment.” He referred to Trimble, Selkent and Abercrombie.

[34]He submitted that, “ultimately, the authorities show that the question of whether a new party should be joined to the Tribunal proceedings is a matter for the Tribunal’s discretion which should be exercised in such a way as to arrive at a just result”. “Third Respondent’s submissions”

[35]The claimant’s solicitor submitted, with reference to Woodhouse, that it is not necessary at this stage to consider the merits of the claim, “other than to be satisfied that the complaint is not utterly useless and has no prospect of success”.

[36]On the basis of Mist, he submitted that it was not necessary to go through the EC process to amend the existing claim by adding another respondent as this is a case management issue “which should be addressed in accordance with the normal case management principles”.

[37]He submitted that paragraph 44A of the Amended Grounds of Complaint “properly sets out the basis of the claimant’s complaints against the Third Respondent both in relation of the complaint of indirect discrimination and the section 111 complaint and that the Tribunal has jurisdiction to hear these complaints”. In this regard he also referred to s.120 of the 2010 Act.

[38]He also submitted that the relationship between the First and Third Respondents was such that the Third Respondent was in a position to commit a basic contravention in relation to the First Respondent. He submitted with reference to Saiger, that “the claimant’s position will be that one corporate body can commit a basic contravention against another.” He submitted that, “in the circumstances we invite the Tribunal to proceed on the assumption that the Claimant has an arguable case against the Respondent and that per Woodhouse the merits of the claimant’s case against the Third Respondent should not be a relevant factor on the basis that it cannot be said that the claimant’s case is utterly hopeless …. It is submitted that in the circumstances the Tribunal should consider whether the Third Respondent should remain a party to these proceedings by exercising its discretion in accordance with the overriding objective of dealing with cases fairly and justly which requires the Tribunal to consider all of the relevant factors having regard to the interests of justice and the relative hardship that would be caused to the parties.”

[39]He submitted that the Third Respondent “could not point to any particular prejudice caused by the amendment over and above the inherent prejudice of being exposed to a claim which could not otherwise have been brought” and that the Third Respondent, “could reasonably anticipate that the complaints brought by the claimant against it are the natural concomitant of the relationship between the First and Third Respondent.” He submitted that the “just result requires the Third Respondent to remain in the proceedings as clearly there are issues between all of the parties that need to be determined so as to ascertain whether the arrangements and practices of the First and Third Respondent are lawful. This is particularly important in circumstances where these arrangements/practices apply to all the Home Office forces in England and Wales and thus affect thousands of female police officers.” He submitted that, “it is clearly in the interests of justice for the issues between the parties to be considered by the Tribunal and for the Tribunal to consider whether the Third Respondent does by it practices discriminate against female police officers.”

[40]He then referred to paragraph 3 of the Third Respondent’s paper apart to the response form which states that:- “The Second Respondent (sic) was established in 2012 as the professional body for everyone who works for the Police service in England and Wales. The Second Respondent’s products and standards are developed for the Home Office forces in England and Wales but are intended for the benefit of ‘all in policing’… the purpose of the Second Respondent is to provide those working in policing with the skills and knowledge necessary to prevent crime, protect the public and secure public trust.”

[42]He also referred to paragraphs 4 and 7:- “The Second Respondent’s organisational aims are: to develop the research and infrastructure for improving evidence of ‘what works’ in policing; to support the development of individual members of the profession by setting educational requirements to assure the public of the quality and consistency of policing skills and facilitating the academic accreditation and recognition of members’ expertise; to set standard in policing for forces and individuals based on the best evidence available of single ‘what works’. The Second Respondent is the body responsible for issuing Firearms Training Licenses to police forces, including the First Respondent.”

[43]It was submitted that:- “Given the reach and importance of the Third Respondent it is essential that in circumstances where it may be acting unlawfully the Tribunal should consider whether the claimant’s complaints are meritorious and if so the Third Respondent should then no doubt wish to arrange its practices differently. This is a case therefore where the Tribunal should not just be concerned with the immediate dispute between the Claimant and the Third Respondent but also the wider implications and impacts on a much wider class, namely all female police officers. In so far as the Claimant as an individual is concerned it is submitted that even if the Tribunal just assesses the balance of prejudice between the Claimant and the Third Respondent there is greater prejudice to the Claimant who may be left without a remedy if a primary case against the Third Respondent does not succeed. It is respectfully submitted that the Third Respondent cannot make any legitimate criticism of the timing and manner of the application given that the application was made promptly once the First Respondent identified as one of its legitimate aims that it had to comply with College of Policing Standards. The situation was akin to the type of case where new facts and information come to light or where a respondent in a discrimination claim raises a s.109(4) defence which can then result in the need to amend/apply to add another party. A similar situation also arises in civil proceedings where one party makes allegations against a third party.”

[44]It was submitted that once the claimant became aware of the First Respondent’s legitimate aims, the application to amend was made promptly.

[45]It was also significant, it was submitted, with reference to Abercrombie, that although a new cause of action is raised by the amendment, “the new pleading does not involve substantially different areas of enquiry; in fact the areas of enquiry are identical.”

[46]Nor was it the case that the claim could not be properly investigated or defended as “all of the relevant contemporaneous documents remain in existence and the case will be determined by ‘technical’ evidence rather than on the recollections of lay witness evidence”. Response to Third Respondent’s submissions

[47]The claimant’s solicitor then responded to the numbered paragraph by way of “Summary” in the final page of the submissions by the Third respondent’s solicitor.62.1 - It was submitted that there has been a “fundamental misunderstanding” of the claimant’s case as set out at paragraph 44A of the amended Grounds of Complaint”. “The Claimant’s case is that the Third Respondent indirectly discriminated against the claimant by requiring the MDP (i.e. its own PCP) to apply the PCP’s referred to at paragraph 35 of the Amended Grounds of Complaint. In the circumstances this complaint is arguable and it cannot be said that it has no prospect of success”.

62.2 - The claimant’s solicitor also maintained that there had been a fundamental misunderstanding of the s.111 complaint as it, “advances an esto argument which she is fully entitled to do under Scots employment law”. It was submitted that this complaint is also arguable and cannot be said to have no reasonable prospect of success.

62.3 - On the basis of Mist, it was submitted that there is no need for EC.

62.4 - The claimant’s solicitor submitted that, “as is clear from the Grounds of Complaint the Claimant’s primary position is set out at paragraph 44, namely that the MDP is not required to have a College of Policing licence in order to lawfully deploy AFP’s and/or armed officers. It was for this reason that the s.111 claim was not pursued at the outset. It only became necessary to bring this complaint once the First Respondent raised legitimate aim 4 in its e-mail of 15 August 2019.”

62.5 - “See the point made above”.

62.6 - As the alleged unlawful conduct on the part of the Third Respondent was ongoing, and remains ongoing, it was submitted that the complaint would not have been out of time even at the time of lodging the ET1 claim form. 62.8 - “See above.” 62.9 - “It is not accepted that in the circumstances the claimant would have any claim against her legal advisers.” It was submitted that, “the Third Respondent has been brought into the proceedings to protect the claimant’s position in the event that the respondent makes out its defence. In those circumstances the Claimant would be left without a remedy if the Third Respondent does not remain a party to these proceedings”.

[48]The claimant’s solicitor also disputed the assertion by the third party’s solicitor that the Order should be set aside as it was not given an opportunity to make representations before the Order was made. “This again fundamentally misunderstands the procedure which applies to this type of application. Applications of this type are made ex parte (because the prospective party to the proceedings would have no (locus standi) and the respondent is then given an opportunity to apply to set aside any Order made (as the Third Respondent has now done) and to make full submissions at that point (which the Third Respondent has now done). The issue is then in effect dealt with “de nouveau”.

[49]Finally, the claimant’s solicitor said this:- “In the premises, the Claimant submits that this is a case where the Order was properly made and that for the reasons set out above the Order should not be set aside and that the claimant’s complaints against the Third Respondent should be allowed to proceed. Shortly put, as recorded in the Order the Third Respondent should be a party to his proceedings as there are issues between the Third Respondent, the claimant and the First Respondent falling within the jurisdiction of the Tribunal which it is in interests of justice to have determined.” First Respondent’s Submissions

[50]The First Respondent’s solicitor also made written submissions. He did so by way of an attachment to an e-mail on 14 February which is referred to for its terms. Time-bar

[51]His submission relating to time bar is, “limited to clarifying that the claimant was given notice of dismissal on 29 August 2018 to take effect on 15 October 2018 subject to a right of appeal. That appeal was heard on 12 October 2018 with the decision reserved and issued by First Class post by the respondent to the claimant on 18 October 2018. The appeal was dismissed and confirmed the date of appeal as 15 October 2018”. Early Conciliation

[52]The First respondent had no submission to make in this regard. “Prospects of success”

[53]The First Respondent’s solicitor confirmed that the First Respondent denied any form of discrimination in respect of the claimant and maintained that, “the Third Respondent ‘caused or induced’ it to adopt the 7.6 multistage fitness test for Authorised Firearms Officers which is the focus of this claim.”

[54]The First Respondent’s solicitor then went on his written submissions to respond to pleadings on behalf of the Third Respondent in its paper apart to the ET3 response form.

[55]In doing so, for ease of reference his submissions referred to the “Third Respondent” throughout even where the term “Second Respondent” is used:- 7:- “The Second Respondent is the body responsible for issuing Firearms Training Licences to Police Forces, including the First Respondent” 10:- “The Third Respondent took over responsibility for setting the standards of competence… in 2012. The standard relates to … ‘fitness of individual officers.” 17:- Narrates the history of the development of the job related fitness test and states:- “Amongst other recommendations, the working group recommended that the Police Advisory Board of England & Wales adopts ‘the standards in Table 1 of the Specified Specialist Police Officer Roles as the only standard’. The Report recommended in Table 1 that the job related fitness test (“JRFT”) for Authorised Firearms Officers (“AFO”) should be 7.6.” 19:- ‘If a Police Force wishes to have their Firearms Training Licence endorsed by the Third Respondent they must comply with the Third Respondent’s Standards of Competence. These Standards cover… ‘fitness’. This includes the requirement that AFOs meet the minimum standard of 7.6 in the MSFT.” 20: - “It is stated that the Third Respondents considers that it is necessary and proportionate for AFOs to have such attributes in order;… ‘to provide the public with confidence that AFOs have been properly trained for the role and to facilitate interoperability between the forces’. 21: - “The Third Respondent endorses the Firearms Training Standards of Forces who volunteer to comply with and achieve the Third Respondent’s Firearms Training Standards of Competence and the Third Respondent is the only body which “can issue a Firearms Training Licence” (emphasis added). 23: - “If a Force’s Firearms Training Licence is not endorsed by the Third Respondent, this will limit but does not prevent interoperability” (emphasis added). 25: - The Third Respondent admitted the First Respondent’s pleadings that “in 2010, the COP published a requirement for all officers to be of a certain fitness standard”. It then went on to narrate that the First Respondent commissioned the Institute of Naval Medicine to produce a report about fitness standards which suggest that a fitness standard test of 5.7 for all AFOs. The Third Respondent’s pleadings states that the Chief Executive of the Third Respondent wrote to the Chief Constable of the First Respondent stating that the Third Respondent was not satisfied that the exercises conducted were an accurate representation of the operational cover and movement tactics. “The College concluded that the test did not provide evidence that a fitness standard of 5.7 was appropriate for this type of activity and the national AFO Role Profile”. 26: - The Third Respondent’s pleadings state:- “With reference to the letter dated 10 February 2016 from the Chief Executive of the Third Respondent that “my letter last year made it clear that the adoption of the fitness standard of 5.7 has implications”. In the letter I stated: “Adopting a fitness standard set to 5.7 means that you accept this will require a bespoke role profile supported by your FSTRA which could impact upon interoperability with other forces”. 28: - “It is submitted that if a Police Force takes a decision that almost all of his officers are AFOs, then each of those AFOs must meet the 7.6 MSFT standard in order for the Police Force to meet the Third Respondent’s Firearms Training Licence Standards of Competence”.10. In the First Respondent’s paper apart in its response, it is stated in paragraph 5 the reasons why the Third Respondent’s standards are believed to be necessary. These include interoperability with other forces.

11. All Home Office Police Forces and all other Police Forces in the UK that deploy firearms comply with the Third Respondent’s standards. The Third Respondent sets the national standard. It is the sole body that does so. The First Respondent has already had its Firearms Training Licence temporarily suspended and restored by the Third Respondent for other related reasons as narrated in the pleadings.” Discussion and Decision Jurisdiction/Early Conciliation

[56]I first considered the jurisdiction point taken by the Third Respondent’s solicitor: the contention that the Early Conciliation (“EC”) requirements had not been meet in respect of the sisting of the Third Respondent.

[57]In my view, the cases on which she relied namely Science Warehouse and Mist do not support her submission, quite the contrary in fact.

[58]In Science Warehouse, HHJ Eady expressed the view that s.18A of the Employment Tribunals Act 1996 (“the ETA”) which applies the EC procedure in relation to any “matter” should be given a broad interpretation in order to avoid disputes and satellite litigation as to whether proper notification has been given of each and every possible claims subsequently made to a Tribunal.

[59]Although amendments to an existing claim are not listed in s.18A(7) this is because the question of amendment of existing proceedings falls within the case management powers of the Tribunal; no specific exception is required to be made. Amendments are only permissible if allowed by the Tribunal in exercising its case management powers under Rule 29 of the Rules of Procedure and by applying the guidance laid down in such cases as Selkent.

[60]The decision in Science Warehouse was followed by the EAT in Mist in relation to the issue with which I was concerned, namely adding a new party to existing proceedings. HHJ Eady was satisfied that this approach was consistent with Rule 34, “which specifically addresses the addition or substitution of parties in Employment Tribunal proceedings without reference to any further EC requirements”, and with the “overriding objective” in the Rules of Procedure.

[61]Subsequently, in Drake International Systems Ltd and Ors v Blue Arrow Ltd

[2016] ICR 445

, EAT, Mr Justice Langstaff referred, with approval, to HHJ Eady’s broad interpretation of s.18A of the ETA and the concept of a “matter” in Science Warehouse.

[62]EC concerns prospective parties. After EC has been completed and a claim has been brought in respect of “a matter” there is no further EC requirement. The Tribunal has discretion to add new respondents to the proceedings where it is in the interests of justice to do so, in accordance with its general case management powers.

[63]I was satisfied, therefore, that the Tribunal had jurisdiction to consider the claim now advanced against the Third Respondent. Claimant’s amendment

[64]I was satisfied that when I added the Third Respondent as a party it was in accordance with the Rules of Procedure. There is a wide discretion under Rule 34 to add, substitute and remove parties to proceedings. This power, when read, in conjunction with Rule 29, can be exercised, “at any stage of the proceedings” which can even be after the time limit for bringing a fresh claim against the respondent has expired.

[65]The application by the Third party’s solicitor in the present case was under Rule 30 for the Order to be revoked under Rule 29.

[66]The same principles apply to an amendment to add, substitute or remove parties to a claim as to any other amendment.

[67]In Cocking v Sandhurst (Stationers) Ltd and Another

[1974] ICR 650

, Sir John Donaldson, when delivering the Judgment of the NRIC, laid down a general procedure for Tribunals to follow when deciding whether to allow substantial amendments. These guidelines have been approved in several subsequent cases and were re-stated in Selkent. In that case, the EAT emphasised that the Tribunal, in determining whether to grant an application to amend, must carry out a careful balancing exercise of the relevant factors, having regard to the interests of justice and to the relative hardship it will be caused to parties by granting or refusing the amendment. Mummery LJ said this at pages 843 and 844:- “…………………………………………………………………………………. (4) Whenever the discretion to grant the amendment is invoked the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. (5) What are the relevant circumstances? It is impossible and undesirable to attempt to list them exhaustively, but the following are certainly irrelevant:-(a) The nature of the event amendment Applications to amend are of many different kinds ranging, on the one hand, from the correction of clerical and typing errors, the additions of factual details to existing allegations and the addition or substituting of other labels for facts already pleaded to, to on the other hand, the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal have to decide whether the amendment sought is one of the minor matters or is a substantial alteration pleading a new cause of action.

(b) The applicability of time limits If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the Tribunal to consider whether that complaint is out of time and, if so, whether the time limit could be extended under the applicable statutory provisions e.g. in the case of unfair dismissal s.67 of the Employment Protection (Consolidation) Act 1978.

(c) The timing and manner of the application An application should not be refused solely because there has been a delay in making it. There are no time limits laid down in the Regulations of 1993 for the making of amendments. The amendments may be made at any time – before, at, even after the hearing of the case. Delay in making the application is, however, a discretionary factor. It is relevant to consider why the application was not made earlier and why it is now being made; for example, the discovery of new facts or information appearing from documents disclosed on discovery. Whenever taking factors into account the paramount considerations are the relative injustice and hardship involved in refusing or granting an amendment. The questions of delay, as a result of adjournment and additional cost, particularly if they are unlikely to be recovered by the successful party, are relevant in reaching a decision. Present case “Nature of the amendment”

[69]While the amendment introduced two new complaints, they are linked to and arise out of the same facts as the original claim. “Applicability of time limits”

[70]While the application to amend was submitted well outwith the three month limit, I am satisfied that the submissions by the claimant’s solicitor in this regard were well founded. I accepted that the catalyst for bringing the claim was on 15 August 2019, when the First Respondent replied to the request for clarification and included in the alleged “legitimate aims” was the requirement to “comply with College of Policing Standards”.

[71]Further, notwithstanding the timing of the application, I was satisfied that there could still be a fair hearing and that the cogency of the evidence would not be affected. I was satisfied that it would be “just and equitable” to exercise the Tribunal’s discretion and extend the time limit. “Prejudice and hardship”

[72]I was also satisfied that the submissions by the claimant’s solicitor in this regard were well founded: “the Third Respondent cannot in the circumstances of this case point to any particular prejudice caused to it by the amendment over and above the inherent prejudice of being exposed to a claim which could not otherwise have been brought.”

[73]However, should I refuse the application to amend, there would be a possibility of the claim being dismissed against the First Respondent, it emerging that there was a valid claim against the Third Respondent and the claimant being left without a remedy.

[74]As the claimant’s solicitor drew to my attention, with reference to Woodhouse: “in the assessment of the balance of hardship and the balance of prejudice it should be assumed that the case is arguable unless the complaint is utterly hopeless and has no prospects of success”. I was satisfied that there are issues between the Third Respondent by the claimant and the First Respondent. The Merits

[75]It was only with some hesitation, as the issue was an application to amend, that I was prepared to at least have some regard to the apparent merits of the claim succeeding against the Third Respondent. However, for the purpose of considering the issue and the assertion by the Third Respondent’s solicitor that the claim against the Third Respondent has “no reasonable prospect of success”, I took the claimant’s averments (amended in respect of the Third Respondent) at their highest value. In other words, the purpose of the exercise, I proceeded on the basis that the claimant would be able to approve all that she avers.

[76]I was satisfied that the claims against the Third Respondent are at least arguable (see Redhead v London Borough of Hounslow

UKEAT/04/09

/11, for example). I was satisfied that it is clearly in the interests of justice for the issues between the parties to be considered by the Tribunal and, as the claimant’s solicitor submitted, “for the Tribunal to consider whether the Third Respondent does by its practices discriminate against female police officers”.

[77]I was also mindful of the “fact sensitive” nature of discrimination cases (Anyanwu and Ors v Southbank Student Union and Ors

[2001] 2 ALL ER 353

, for example). Lord Hope also said in that case that, “discrimination issues… should, as a general rule, be decided only after hearing evidence”.

[78]I was unable to conclude that the claim against the Third Respondent has “no reasonable prospect of success”.

[79]In all these circumstances, therefore, I decided that the application by the Third Respondent’s solicitor to set aside the Order of 24 October 2019, as amended on 12 February 2020, should be refused.

[80]In July 2017 the COP inspected the MDP and provided findings and a recommendation that the license should be suspended (JB676/680) which it was on the 20 July (JB681).

[81]In October 2017 the NPCC wrote to the MDP that deploying officers with the lower fitness standard could cause significant risks when being deployed. It had taken legal advice (JBp684) and wrote: ‘‘It is important to acknowledge that the MDP could be deployed in significant numbers without a TEMPERER authorisation as you form part of the National Armed Policing Strategic Reserve’’ .It went on to state that legal advice was to the effect that only officers fully compliant with national standards should be deployed except in exceptional circumstances otherwise there could be significant legal consequences for the host Chief Constable deploying them.

[82]On the 2 November 2026 the COP’s Professional Committee formally endorsed the use of the Chester Treadmill device as a validated alternative to the MSFT.

[83]On the 9 November 2016 in a letter (JBp670) to all Chief Constables the COP wrote ‘‘While recognising that implementation remains a local decision, Forces are encouraged to utilise these validated tests recognising the significant work conducted to ensure validation with the 15mM MSFT’’. Attached to the letter was information about the Treadmill Test, the equipment needed and the settings required to replicate the MSFT test.

[84]Guidance was issued to Forces on the Implementation of the Job Related Fitness Test in December (Specialist Posts) and January 2017 (JBp875 and p891).

[85]The December Guidance contained a warning that there was a potential legal challenge under the Equality Act but that the standards had been assessed as reasonable and appropriate. It gave guidance about the use of the Chester treadmill Test and how to administer it. It stated (JBp883): ‘‘The test administrator should be well trained, knowledgeable and experienced in conducting he test. They should be totally familiar with operating the treadmill and in explaining to the subject the use of the RPE chart’’ The Guidance indicated that the importance of good walking technique should be explained. It also contained detailed advice about the conditions in which the test should be administered.

[86]The January Guidance contained information of a more general nature in relation to fitness testing. It warned that age and gender would have an impact on performance It suggested women only testing sessions and if possible female test administrators with mentoring programmes. It suggested that passes and failure should not be passed out of the chain of command (JBp899). The Guidance contained information that the COP had identified a disproportionate impact on women through data of pass and failure rates (JBp903).

[87]The COP also sent an email on 5 March 2019 (JBp693-694) advising that the COP had to robustly protect common national standards.

[88]The MDP began recruiting again in March 2014 requiring new recruits to attain a fitness score of 7.6 on the 15 metre MSFT. Claimant

[89]The claimant, Ms Koren Mae Brown was 26 years old when she joined the MDP. She is a female. In 2015 she made an application to join the Ministry of Defence Police. She was invited to attend a ‘‘SEARCH’’ assessment which took place over 2/3 days in around April 2016. As part of the assessment there was a fitness test and formal interview. The claimant was advised that she was expected to achieve a score of 7.6 on a multi-stage fitness test (MSFT) or ‘‘bleep’’ test during which she would run a series of 15 metre lengths turning and returning on a “beep’’ to a shuttle of 15 metres. The intervals between the beeps would decrease requiring anyone undertaking the test to increase their pace. The claimant scored 6.7. She was told that she could resit the test at a later point. The claimant understood that she needed to reach this level of fitness on the MSFT.

[90]The claimant ‘s pre-employment assessment was positive and she was provided with a candid feedback report. She was held to have passed the physical fitness standard.

[91]In May 2016 the claimant attended a medical assessment. It was noted that she had a heart murmur. The claimant did not take another MSFT test at that point.

[92]The claimant was aware that there were two levels of fitness tests namely 5.7 which applied to existing staff and 7.6 which applied to the claimant’s intake.

[93]By October 2016 the claimant had been offered employment to commence November 2016 (JBp39-40). Her salary was £21,534. She was 26 years old. The letter made reference to other documents in relation to her terms and conditions of employment including a document headed ‘‘Statement of Particulars’’(JBp41-51) which was signed by the claimant on the 9 October 2016 accepting the offer of employment. Clause 14 made reference to job related fitness standards (JBp44) and the requirement to pass the MSFT at level 7.6.

[94]The claimant assumed that despite not achieving 7.6 she might be employed and the lower 5.7 level as that what she thought she would have to maintain in the future. The claimant became a Constable with the MDP on 14 November 2016. As an integral part of her role she was armed. She was to be employed as an Armed Support Vehicle Officer which meant that she would be an AFO. She required to be trained and instructed to perform protection and patrol services at MOD UK sites and be deployed with a firearm (JB41-51). Initial learning and development programme (ILDP)

[95]The claimant began her IDLP at Wethersfield which is the MDP Headquarters. This consisted of a wide range of learning, some classroom based and practical exercises. The initial training period was for 17 weeks, 11 being classroom based with 6 relating to firearms training. After passing out she returned to the training school for a further 4 weeks for further firearms training.

[96]For the first 5-6 weeks of training the claimant was asked to fill out a “Fit to Test Note”. The claimant indicated on that form that she had a heart defect because of the heart murmur discovered at her initial medical. As a result the claimant was given a “Unfit to Test Note” and was referred to MDP’s Occupational Health provider. The claimant was unable to take any further fitness tests meantime. The G.P. eventually confirmed that there were no issues with her heart but the claimant completed her ILDP training on 24 March 2017 having not achieved a 7.6 MSFT score. She had completed only one formal attempt at the MSFT.

[97]The claimant did not struggle with any physical aspects of the training and took part in and successfully completed various physical exercises including job related tasks such as cover and movement exercises which were completed with “full kit” (PPE) and in exercises requiring search and foot interception of marauding terrorists. In this exercise she was expected to quickly alight from a vehicle, and intercept the attacker by running after them and tackling them. One exercise she did involved running a long distance over uneven ground. The claimant did not find any difficulty in completing these exercises successfully.

[98]Following the training period the claimant completed further firearms training when deployed to vehicle support where she had to engage in physically demanding exercises such as ‘hard stops’. These were more demanding than the exercises she had taken part in at Wethersfield. The were completed with full PPE. From April 2017 the claimant began her role as an armed support vehicle officer. She was assigned to a base in the north of Scotland where she carried out her full range of duties. The claimant was one of a very few female AFOs stationed there. Fitness concerns

[99]On the 30 March 2017 the claimant (JB62) had a first meeting in relation to not passing the MSFT. She indicated she was struggling with her breathing during the test. She believed that this was preventing her from obtaining a 7.6 score. After consulting her G.P. she was prescribed an inhaler to assist her. Her breathing difficulties were later diagnosed as being stress related. The claimant’s MSFT times improved and she took a training test on 12 April when she achieved a level of 6.6.

[100]Because the claimant had not achieved the 7.6 standard she was advised that she was now part in the “Managing Loss of Qualification process”. She was told that she must achieve a 7.6 level by Wednesday 3 May 2017 (JBp62). The claimant felt disadvantaged because she had not taken many tests because of delays getting the permission to do so ahead to do so after her heart murmur was discovered. First deployment

[101]On 18 April 2017 the claimant was deployed. Of the Police Constables and Sergeants only a small percentage were female officers. The claimant commenced her duties and she found no physical difficulty in carrying them out. This included guarding and patrolling. The station did not have the facilities to allow MSFT testing indoors so weather permitting the claimant would set up the necessary equipment outside and run informal tests.

[102]The claimant felt that there was a lot of pressure put on her to get the fitness test completed successfully. The matter was regularly commented upon by others officers and her superiors. She would be told that she needed to pass the test to ‘‘have other people’s back’’. She found running and failing the test demotivating and embarrassing. The claimant found that this put additional pressure on her. In addition she was now on a regular rota’s shift and getting time to train was difficult. The other AFOs recruited before the claimant were only required to train to the 5.7 level.

[103]At this point the claimant would run the MSFT at least twice a week. She would use the gym at the station for circuit training and carry out her own physical activities when not working including walking her dogs and riding horses.

[104]On 7 May the claimant undertook the MSFT and obtained a score of 5.6. After the test she felt dizzy and was advised to contact her doctor (JBp64/67).

[105]On 28 July the claimant took the MSFT test and obtained 6.0. The assessor noted that she was struggling with her breathing from around level 5.7 (JBp72/75).

[106]On 14 August the claimant undertook the MSFT test and failed to obtain 7.6 (JBp77-78). Wethersfield

[107]On 21 August and 19 October 2017 the claimant was redeployed to Wethersfield to work on administrative duties in relation to training required to allow the MDP to regain their College of Policing Licence.

[108]There was a programme of activities arranged for her to undertake to increase her level of fitness. This included circuit training, practising sprints in the hall and gym sessions. During this period the claimant was able to undertake these activities and keep up with others who are doing them. The claimant found the staff and the general environment more encouraging than she had at her first deployment.

[109]The claimant undertook the MSFT on 5 September 2017 and achieved a score of 6.5. She was told to continue with one-to-one training (JB79-82).

[110]The one-to-one training plan that was put in place was not tailored to the claimant or her needs. It was a generalised training plan (JBp190-193).

[111]On leaving Wethersfield the claimant had achieved 6.1 on an unofficial test.

[112]The claimant was unaware at the time of documented concerns about her performance made by Simon Munro (JBp83). The claimant had never been given the opportunity of carrying out a formal attempt on the Chester Treadmill which was a recognised alternative to the MSFT for testing fitness nor been given any assistance or guidance in it’s use. No other alternative means of reaching an equivalent to the 7.6 MSFT was discussed. She had been given one opportunity to try the treadmill test as a familiarisation exercise. When she could not immediately keep her balance on it she said it wasn’t for her. She was not encouraged to persevere with the treadmill test as an alternative to the MSFT or given guidance or support in it’s use. There was no calibrated treadmill available at her first deployment. She did not try it again.

[113]The claimant did not have access to a calibrated Chester Treadmill except when stationed at Wethersfield. She did not know the level of gradients used and was unable to informally try the test using treadmills at other stations. Although the claimant received an inhaler from her GP to assist with her breathlessness she was later diagnosed with having panic attacks rather than suffering from asthma. Return to first placement

[114]On 23 October 2017 the claimant returned to her first deployment to resume fully armed duties.

[115]On 8 December 2017 the claimant self- referred herself to Occupational Health with a sore back. She was told not to carry out any training from the fitness test until the problem had resolved. A later assessment found that her back was over compensating for deep tissue muscles in her stomach which weren’t working as they should. She attended physiotherapy sessions between 5 December 2017 and 20 March 2018. She was provided with exercise and guidance. These exercises assisted her with her back problem. Capability process

[116]On 15 December 2017 the claimant attended a first meeting under the MDP capability process/policy. At that meeting she advised that she had been unable to train due to her back problems and had a “not fit to test” note provided to her by her G.P. She was still undergoing physiotherapy treatment. She received a letter following the meeting (JBp85-86) which confirmed her probationary period would be extended until 1 June 2018. Disarmed

[117]On 23 January 2018 the claimant along with other colleagues who had not achieved the 7.6 standard were disarmed.

[118]After being disarmed the claimant was given administrative tasks to do. She was asked almost daily if she had been to the gym. She found that her anxieties were increasing because of this pressure to pass the MSFT.

[119]In March 2018 the claimant was deployed to Wiltshire Police to assist in Operation Scarth in an unarmed capacity.

[120]The claimant’s physiotherapy treatment was completed around 20 March 2018 and she was clear to recommence training for the MSFT. On that date she took a test and obtained a score 5.8.

[121]On 8 May the claimant underwent an unofficial test when back at her first deployment and obtained 5.8.

[122]At this point the claimant was running 2-3 times per week and practised the fitness test. She would do circuit training and use the gym when at Wethersfield.

[123]On 24 May 2018 the claimant took an official test and scored 6.1.

[124]On 24 May the claimant received correspondence from the MDP setting out future dates where she would be subject to a MSFT (JBp87-88). She was advised in this correspondence that her probation period would be extended from 1 June 2017 for 12 weeks.

[125]On 4 July 2017 the claimant took an official MSFT and obtained a score of 6.2.

[126]On 15 August 2018 the claimant took an official MSFT and obtained 6.3. She was confident and motivated but at the end of the test she suffered a panic attack and had to go home mid shift. Dismissal

[127]On 29 August 2018 the claimant attended a second capability meeting chaired by Chief Superintendent Denis Jackson. He had access to the various test scores but did not have details of every unofficial test. The claimant confirmed her exercise regime. When not at work she went walking with her dogs over hilly ground, circuit training and yoga. She indicated that she felt the fitness tests were becoming a mental block because of the pressure on her to pass it. The claimant also said that not carrying out her day-to-day role made it difficult to demonstrate her capability and willingness to carry it out. As she had been disarmed there was little for her to do at work. She said that she had been described anxiety medication because of her breathing difficulties. When asked if she had tried the Chester Treadmill she indicated that she had tried but struggled to stay on it because she could not keep her balance. She had not formally been tested on the Chester Treadmill. She was asked if she had access to practice on a Chester Treadmill and she said no. The claimant was offered no alternatives to demonstrate that she could meet the 7.6 standard or equivalent.

[128]The claimant had not been given any advice about running other than to try and use her whole foot, lengthen her stride and buy better running shoes.

[129]The claimant found that doing the ‘‘bleep test’’ with colleagues who, were mostly male and who could pass the test was embarrassing and demotivating. In addition, when she was stationed at her first deployment station there was no suitable indoor facilities to practice the test. She could not use the gym every shift as it depended on whether her duties would allow her to do so.

[130]The 12 week fitness plan given to the claimant (JBp93) consisted solely of a list of test dates.

[131]The claimant concentrated on passing her fitness test and was told that this should be her primary focus rather than any other aspect of her work. As a consequence, the claimant was criticised by her superiors for her performance. These concerns were not raised with her. Outcome

[132]Chief Superintendent Jackson told the claimant that he had spoken to local line management to obtain a wider view of her performance. He suggested that she had “drifted” and not managed her time correctly. He made reference to an oral examination where she had initially failed but then passed a high standard. He observed that her performance was “mediocre” and needed supervision.

[133]The claimant did not have access to the reports written about her by PC Jane Allan and Inspector Glen Marnoch or the contents of those reports to rebut them.

[134]At the end of the meeting Chief Superintendent Jackson advised the claimant that as she had been unable to reach her score of 7.6 her employment was to be terminated and her last day of work would be 15 October 2018. The claimant received a letter of dismissal dated 11 September 2018 (JB100-102). Appeal against dismissal.

[135]The claimant appealed her dismissal and argued that the contracted fitness standard was not 7.6. She indicated that she repeatedly met the 5.7 level of fitness. Her position was that the 7.6 standard disadvantaged her as a woman. The claimant indicated that she was able to perform her duties operationally despite not achieving the 7.6 level and provided a statement in support of her appeal (JB111- 112) from the Defence Police Federation. There was an appeal meeting on 12 October 2018 at which the claimant was accompanied by Mr Eamon Keating, Chair of the Defence Police Federation. At the appeal Mr Keating explained the other tests should be explored. He made reference to the Chester Treadmill test and the fact that. The claimant had never formally been assessed on it.

[136]The claimant’s appeal was unsuccessful and she received an outcome letter on 18 October 2018 (JBp118-120). In it David Long ACC Operations, the appeal manager, indicated that he did not accept that there was any misunderstanding as to the fitness level of 7.6 she had to obtain to remain employed. He did not accept that once employed she could remain if she reached the lower standard. He stated that she had been given a minimum number of formal attempts to pass the MSFT and that she had been given a significant number of additional opportunities to demonstrate her competence. He said that he had taken account of her various medical difficulties. He stated that ‘‘you have been afforded a familiarisation on the Chester Treadmill and had found difficulty undertaking such. The comment you made during the Dismissal Meeting stated ‘‘I’ve tried it (Chester Treadmill) but struggle to stay on the treadmill because I can’t keep my balance. It doesn’t work for me’’. He noted that on two occasions the claimant didn’t achieve a pass at the lower standard. He indicated that she had received an ‘‘extraordinary level of coaching/support’’ He had concluded that she was not sufficiently self- motivated to pass and that her time management was poor. He believed that the 7.6 standard was required for interoperability and that this was essential to the role of AFO.

[137]At the date of the hearing in September 2022 85 AFOs employed before 14 March 2014 had not passed the 7.6 MSFT and had since 1 April 2022 been disarmed. The DPF had provided support to officers struggling with the test. In January 2022 a total of 165 operational officers had failed the 7.6 test made up of 123 male officers and 42 female officers. Female officers make up less than 10% of the workforce.

[138]No AFOs recruited since 17 March 2014 both male or female have ultimately been unable to pass the 7.6 MSFT test. Witnesses

[139]The claimant gave her evidence in a clear and straightforward manner. She was subjected to detailed and lengthy cross examination. Both Mr Walker and Ms O’Grady suggested that the fault in not passing the test lay with her and her lack of application to getting fit enough to pass it. She was attacked for presenting herself as a better candidate than the full written evidence suggested.

[140]We considered these criticisms carefully. There were aspects of the claimant’s evidence which initially gave us some concern particularly as to whether she had engaged in the physical activities outside work she claimed and if so why she had not ultimately passed the MSFT. However, we needed to look at the context of what was happening. We concluded that in the absence of a detailed training plan or schedule it must be difficult now after the passage of time for a witness to recall exactly what time was spent on exactly which particular exercise especially as these were undertaken after work. The claimant was never asked to make a diary or log of her activities at the time.

[141]Professor Brewer had reminded us that the human body is designed to react to exercise by getting fitter. We studied the scores the claimant had achieved. These did improve to an extent although she never achieved a pass. Looking at the whole circumstances, including the various health difficulties she experienced, we came to the conclusion that we could not be as critical of the claimant’s evidence in this regard as we were urged to. Indeed, the fact that the claimant repeatedly failed the test despite being fit and active and having completed successfully various strenuous exercises during her IDLP should have been a warning sign to her managers. The claimant overall struck us as an honest witness and in general a credible and reliable one who had made no inconsiderable efforts to pass these tests. She was a fit and active young woman who carried out a considerable amount of physical activity over and above her duties as an AFO to try and pass the test. We will return to these matters later in the Judgment.

[142]We found the evidence of Professor Brewer and Bilzon, although not at crucial points in accord with each other to emanate from credible and reliable witnesses who tried to assist the Tribunal as best they could. It is often said that science and scientists aim for objectivity and we are sure that both witnesses tried to do so but there were deeply held differences of view and both witnesses at points were keen on a some proselytising for their own positions.

[143]We were conscious that both the witnesses from the Federation, Mr Keating and Ms McKeon had strong views in relation to the testing regime and that faithfully reflected their members concerns. Nevertheless, they gave credible and reliable evidence on which the Tribunal could place some weight particularly the evidence of Ms McKeon who we found to be an impressive witness. We would comment on the evidence of Mr Nicolson which we found to be persuasive in many regards given his considerable experience as a Specialist in Armed Policing. We accepted that considerable weight should be given to his view that the 7.6 standard reflected the actual effort needed in his experience to carry out AFO duties. We found him a professional, credible and reliable witness. The other witnesses, not to diminish that evidence, gave evidence in a credible and reliable fashion about the factual background. Submissions

[144]All three parties lodged detailed written submissions with reference to appropriate authorities which were then discussed and supplemented by oral argument. We will attempt to summarise these. Claimant’s Submissions

[145]The claimant’s Counsel summarised the factual position on which his client relied commenting on the evidence and urging us not to regard Professor Brewer’s evidence as either being truly expert evidence, as being either as skilled a witness as Professor Bilzon or as impartial. He urged the Tribunal to prefer the evidence of his client and her witnesses criticising some of the respondent’s witnesses for giving opinion evidence without any expert or research foundation to support the adoption of the 7.7 score on the MSFT.

[146]Mr Crammond then addressed the legal framework underpinning any decision in particular Sections 19 and 23 of the EA. He then moved onto justification pointing out that the onus was on a respondent to establish justification. The Tribunal he submitted had to with the needs of the organisation against the discriminatory effect of the measure in question. He addressed the PCPs that were engaged and the use of the shuttle test and Chester Treadmill. He examined comparative disadvantage and the evidence that suggested that women were placed at a disadvantage as opposed to me citing biological and physiological differences acknowledged by both the Professors particularly Professor Bilzon. He considered the disadvantage suffered by the claimant that led to her dismissal. He looked at whether a legitimate aim could be discerned and the history around licensing by the COP.

[147]Counsel referred the Tribunal to Section 111 of the EA and how that might be interpreted in the present case. In short, his position was that the COP had huge influence over members such as the MDP and that the MDP would not have acted as it did in adopting the 7.6 test without considerable pressure from the COP. The COP in laymen’s terms were guilty of aiding and abetting the discriminatory behaviour complained of. His position was that the submissions made by Ms O’Grady that (relying on Section 111(7)) that there could be no claim against them were misconceived (North Cumbria University Hospitals NHS Trust v Saiger

UKEAT/2761/15

). In addition, he argued that there was no pleading point as the claim is a Section 110 claim and the claimant was never required to respond to the COP’s pled defence. Second Respondents Submissions

[148]The second respondent’s solicitor accepted that the various PCP’s advanced were applied to the claimant but in addition Mr Walker submitted that crucially the claimant could also pass the fitness test using the Chester Treadmill Test. It was disputed that the claimant suffered the stated disadvantages because of her sex. The second respondent also relied on six legitimate aims that it pursued namely to: (1) protect the claimant from harm/risk of harm (by protecting the individual's health and complying with its health and safety obligations),(2) protect the claimant's colleagues and/ or members of the public from harm/risk of harm, (3) ensure that officer is sufficiently fit to carry out their duties,(4) comply with College of Policing standards, (5) protect the organisation from reputational risk, (6) safeguard national security maintain an efficient and effective police service, including mutual assistance to other Police Forces. The second respondent only needed to succeed in relation to one of these aims.

[149]The claimant he said, in her evidence seemed to accept the legitimate aim which is that an AFO has to be fit enough to carry out her duties. The claimant’s position was that the adoption of the standard was not a legitimate aim as a lower standard was still being applied to AFO’s recruited before the change. In relation to proportionality the claimant says it should not depend on when the AFO was recruited and that the 7.6 standard was not a proportionate means of achieving the aim of mutual assistance and having a COP Licence. The Tribunal had to consider if Section 192 exemption applies and whether the COP caused or induced the second respondents to act as they did.

[150]Mr Walker then examined the evidence before the Tribunal urging it to accept the evidence of David Long and Trevor Clark in particular. Of note was the evidence that by September 2022 Mr Clark stated that 85 AFO’s employed before 2014 had been unable to pass the test and had been disarmed. The second respondent’s solicitor was critical of the claimant’s evidence pointing to the SEARCH assessment results that the claimant referred to in her Statement which were the best results rather than the full picture which disclosed poor or mediocre results in other aspects and led to an overall score of only 53%. She gave evidence that she enjoyed her time at Wethersfield and was not intimidated by others. She said that nothing of concern arose following a medical examination in May 2016 but a heart murmur had been detected which was clearly a concern. He submitted that the claimant’s evidence in relation to her understanding of her contractual position, namely that 6.7 score was enough ignored the basis on which she had been recruited. There were real concerns over the claimant’s performance and application to getting herself fit enough to pass the test. She appeared not to contest many of the aspects of PC Allan’s Briefing Note (JBp95-96). She was ais in that Note to have a mental block about the test and to get anxious about it. She had a panic attack when she last attempted the test. She had informally tried the Chester Treadmill and was unable to balance on it. Examining the pre fitness questionnaires (JBp64,72 and 79) it was not credible that the claimant had spent her free time getting fit for the test as she said. There was inevitably a correlation between the efforts made by the claimant to get fit and her scores. She had received considerable support. There was also some doubt as to how much she actually loved and enjoyed her job. It was notable that after being dismissed she did not take any steps to join another Police Force in a capacity that required a lower fitness level.

[151]Mr Walker then examined the evidence both of Mr Keating and Ms McKeown. In relation to the latter witness it was striking how few officers were struggling with the new standard and who had required her assistance. The Tribunal should give her evidence little weight particularly her assertion that the Force was struggling to recruit female officers because of the test standard.

[152]Professor Bilzon had no business giving, as he did, a view on the law. He had made reference to the Sex Discrimination Act and not the Equality Act. He was an expert witness but his reasoning was fundamentally flawed. The Report appeared to be written to fit the desired conclusions. He had also stated that it was 6% harder to complete 4 shuttles at level 5 compared to 7 at level 5 and 10% harder to complete 7 at level 5 as opposed to 6 at level 7. Professor Brewer’s evidence which should be preferred was that it was only marginally harder comparing 5.4 to 5.7. Professor Bilzon was not asked to comment on the Chester Treadmill System. He gave evidence that 40% of 26 year old females would fail the test but produced no supporting statistical evidence to support the assertion. This should be compared to the evidence of Professor Brewer’s experience with the CNC. There was evidence that the 5.7 level was simply too low to allow an AFO to deal with real life terrorist events where considerable exertion can be required. Professor Bilzon did not and could not say where the appropriate level of fitness lay.

[153]Mr Nicholson had given evidence for the COP. That evidence tended to suggest that whist not being in apposition to instruct the second respondents to adopt the 7.6 standard in cross he accepted that the College ensured compliance with that common standard, there was an agree ‘transition plan’ to the standard, the COP upheld and enforced standards approved by the National Police Chiefs Council, it could suspend a Forces Licence as it did with the second respondent and so forth. His evidence was also that he had seen the firearms tests carried out by the INM and they were not reflective of real life.

[154]Mr Walker then turned to the legal background taking the Tribunal through the relevant law and the approach the Tribunal should adopt. The onus of proving group disadvantage lay with the claimant and she had not been able to discharge this burden. Similarly, she had not proven individual disadvantage. She had a heart murmur, breathing difficulties, problems with her back, a lack of application to getting fit and so forth. The case of Keane v Investigo and Oths EAT 0389/09 was apt. The claimant had to be treated to her ‘‘disadvantage’’ and there could be no disadvantage if what had got in the way of her passing the test related to her lack of motivation.

[155]Mr Walker explored the law in relation to the justification defence being relied on by his clients. He submitted that there were genuine aims such as to protect the claimant, the public and her colleagues from harm/risk, comply with COP standards allowing interoperability and so forth. He then discussed the issue of proportionality. He referred the Tribunal to the case of Home v. Chief Constable of West Yorkshire (2012) 3 AER 1287 which was authority for the proposition that the criterion had to be justified and not just the discriminatory effect. It had to be considered in the light of European jurisprudence. And had to be an appropriate means of achieving a legitimate aim. The same level of fitness had to be applied to both women and men. He also made reference to Section 192 of the Equality Act as being another line of defence or justification for the second respondent’s position. The case of Hardy and Hansons plc v Lax

(2005) ICR 1565

CA was a Court of Appeal authority for the proposition that the employer in showing objective justification does not have to demonstrate that there was no route other than the discriminatory practice by which the legitimate aim could be achieved.

[156]The solicitor drew the Tribunal’s attention to Section 192 of the Equality Act 2010 and to the terms of the section. In his view given the heightened risk of terrorist attacks on the UK the Second Respondent was entitled to ensure that AFOs deployed in such circumstances met the COP standards. He suggested that the reference to proportionality in the section was different to proportionality as defined in Section 19(2)(d).

[157]Mr Walker then considered Section 111 of the EA submitting that the COP were, if there had been discrimination through the use of the 7.6 standard properly caught by the terms of the statute in the circumstances here. He also referred to the cases of Saiger and an unreported Tribunal decision (Wisbey v. Commissioner of the City of London Police and the College of Policing 2207660/2017). In the latter case which was similar on its facts to the current case the Tribunal accepted that the COP had influenced the Forces actions in removing someone from Firearm duties. Submissions for Third Respondent

[158]The focus of these submissions was initially on whether the claimant could not succeed on the basis that she had failed the tests through anxiety and not because of any inherent difficulty in the test level. Without getting over this hurdle the claim was bound to fail. In addition, the Tribunal had to be mindful of the fact that the claim against the third respondents, set out in paragraph 46 of the ET1, was that the MDP was unlawfully instructed or caused or induced to apply the PCPs if required to have a COP Licence. It was accepted that the MDP was not required to have a Licence. It is only if the Tribunal is satisfied that complying with COP standards is a legitimate aim can it succeed. The claimant was tied to her pleadings (Chandok v Tirkey

(2015) ICR 527

. The Tribunal cannot extend the range of complaints.

[159]Ms McGrady then explored what was meant by a legitimate aim submitting that if the test was objectively justified there could be no indirect discrimination. If it was not justified then it could not be a legitimate aim. The third respondent did not require the second to apply any PCPs.

[160]The submissions then commented on the witness evidence. Ms McGrady rejected any suggestion that Professor Bilzon was the only expert witness. The two respondents had been unable to put any questions to him before he gave evidence at the hearing. He was not truly independent He had worked for the INM which had recommended the 5.7 MSFT and his report was largely a ‘cut and paste’ of the claimant’s ET1. As an expert he was not entitled to express views on whether legally the claimant had suffered sex discrimination. The third respondent’s solicitor then examined the evidence in relation to whether the claim was made out and the difficulties the claimant faced. A fair reading of the claimant’s evidence suggested that she suffered breathing difficulties and panic attacks and she herself thought she was fit enough to pass the test if these difficulties had not occurred. The 7.6 standard was not in her view discriminatory. The Tribunal should accept the evidence of the leading expert in the subject who was Professor Brewer. Based on the data the cardio vascular demand of 7.6 appeared to more closely reflect the demands needed to be an AFO. The INM report conceded that the testing was to some extent led by the pace of the least physically fit participant (p774).

[161]The INM used oxygen uptake rather than heart rate as used by the Lilleshall report. The use of oxygen measuring was not practical because it restricted movement according to Professor Brewer. He did not accept that the VO2 measurements would yield different data to heart monitoring. He could not understand how it was possible to criticise the 15 MSFT as a predictor of VO2 capability and not then question their conclusion that the correct level was 5.7. The use of oxygen measuring (gas analysis) could in his view led to false negatives depending on the person exercise economy or errors in calibration.

[162]The solicitor then returned to whether the COP could be said to have induced the discrimination or attempted to do so. The claimant had periled her case on the third respondent requiring the second respondent to apply the PCPs. She then examined the effect of Section 111 and the argument that a basic contravention under the section includes a contravention under section 112(1). It was not enough for the claimant to suggest that the third respondent had in some way endorsed the INM standard and was therefore responsible for their implementation. That was a local decision for individual Chief Constables. There was also always the possibility of using the treadmill test which has not been subject to criticism. Ms McGrady then considered the impact of Section 192 submitting that the 7.6 standard was essential to uphold national security. Discussion and Decision Indirect Discrimination

[163]Whether a PCP exists is a matter of fact for the tribunal to determine (Jones v University of Manchester

(1993) IRLR 218

. The straightforward background is that the claimant, Ms Koren Brown, lost her job because she was unable to achieve a score of 7.6 on the MSFT (bleep/shuttle test). Achieving such a score was a condition of her continued employment: It was agreed that this was a PCP and the essential PCP in the present case although there were other ancillary and consequential effects of that PCP which gave rise to others. We determined that the other PCP’s set out in the draft List of Issues also applied such as a PCP to maintain this level of fitness and to be liable for dismissal for capability if she could not do so.

[164]Section 19 of the Equality Act 2010 prohibits indirect discrimination. It is in these terms: “19 Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.

(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.

(3) The relevant protected characteristics are— …sex… “ 163. The section speaks of ‘‘particular disadvantage’’. This does not refer to serious or significant disadvantage but any disadvantage (McNeil v. Revenue and Customs Commissioners

(2019) IRLR 915

). 164. Section 23 of the Act deals with making comparisons between groups: “23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case.”

[165]In order to establish indirect discrimination it is for a claimant to prove these first three requirements, and then, if required, for the employer to prove that the PCP(s) are a proportionate means of achieving a legitimate aim (Section 19(2)(d)).

[166]The COP were not the employers. They were brought into the process on the basis of Section 111 of the Equality Act which is in these terms: “111 Instructing, causing or inducing contraventions(1) A person (A) must not instruct another (B) to do in relation to a third person (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or

(2) or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention.

(3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention.

(4) For the purposes of subsection (3), inducement may be direct or indirect.

(5) Proceedings for a contravention of this section may be brought— (a) by B, if B is subjected to a detriment as a result of A's conduct; (b) by C, if C is subjected to a detriment as a result of A's conduct; (c) by the Commission.

(6) For the purposes of subsection (5), it does not matter whether— (a) the basic contravention occurs; (b) any other proceedings are, or may be, brought in relation to A's conduct.

(7) This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B.

(8) A reference in this section to causing or inducing a person to do something includes a reference to attempting to cause or induce the person to do it.”

[167]The Tribunal had regard to the EHRC Employment Code and the EHRC Services Code. (Paragraphs 4.21 and 4.22 EHRC Employment Code and paras 5.21,5.22 and 5.32 of EHRC Services Code).

[168]The first matter to determine was whether the MSFT test discriminated against women as alleged. The claimant ’s case was that because of innate biological/physiological differences between men and women it was likely to be more difficult for a woman to achieve the relevant MSFT score than a man and to maintain that level of fitness. It was clear that the harder physical tests were the likelihood was that more men than women would pass. The heart of the dispute was what level of physical exertion was needed to be an AFO.

[169]There was a dispute as to how much harder the 7.6 level on the MSFT was compared to the lower level of 5.6. To an extent this was not in our view the main issue. We can see from the INM report that even 5.6 coupled with the use of this particular test can be difficult for women. Whether the 7.6 standard is 6% harder to more is not really the focus for us rather it is the use of this particular test and the fact that it is more strenuous than the lower test.

[170]There was a measure of agreement between Professor Bilzon and Professor Brewer that these innate differences between men and women existed and that they included lower average muscle mass, a lower ability to return oxygen (a 20% Lower Aerobic Capacity) women having a higher percentage of body fat, smaller hearts with a resultant lower capacity for cardiovascular response, smaller lungs and different pelvis construction. We did not have any specialist assessment of the physical mechanics as to why women find the shuttle tests more difficult but there was some indication that they would find the turning and pushing off for the next run more difficult than men.

[171]The second respondent’s evidence on these matters was at times a little confusing for us to follow when seeming to suggest no comparative disadvantage existed between men and women in relation to passing the test at the 7.6 level. For example, Dr Brewer almost as an afterthought in his evidence indicated that he had encountered no such disadvantage in his work for the Civil Nuclear Constabulary which used the same test and standard (7.6). This assertion was unsupported by statistical evidence or research and as Counsel for the claimant suggested it was an observation formed by looking at a group of people all of whom must have already met the standard to be able to join the CNC. This evidence also contrasted with the warnings in the Lilleshall report and the evidence of Ms McKeown who had experience of female Officers struggling to achieve such levels in the MDP. We could put little weight on Professor’s Brewer’s evidence on this particular matter.

[172]The point was well made in our view that the two respondents had been alerted to the possible disadvantage to women in correspondence including expert views expressed in the INM report and the recognition of such disadvantage was a widespread and acknowledged concern expressed by the Federation to the Chief Constable when this more stringent test was first proposed. Group Disadvantage 172. We accepted that the onus was on the claimant to show group disadvantage. She must show that the PCP in question ‘‘puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it’’. The disadvantage must adversely affect an actual or hypothetical group that shares the relevant protected characteristic with the claimant. There are actual comparators available here and accordingly we need not consider a hypothetical group. The pool effected are females recruited for the AFO role after 2017 who must pass and maintain the 7.6 score on the MSFT.

[173]The Tribunal had, in the end, little difficulty in concluding that there was group disadvantage to the group to which the claimant belonged namely female AFOs. We not only had her evidence of her experience but the evidence of Ms McKeon and Professor Bilzon. Indeed, we noted that the Report from the Institute of Naval Medicine had suggested that that it "may" be more difficult for female AFO's than male AFOs to achieve the 7.6 MSFT ‘‘subject to individual's levels of fitness’’ (JB p7). This seemed to be widely accepted in the correspondence between the COP and second respondents. It is noteworthy that the COP guidance issued to Police Forces including the second respondent specifically warned about the dangers of discrimination against women in adopting the 7.6 standard from the perspective that it might be discriminatory but it was justified given the physical demands of the job as assessed in the Lillehall report.

[174]It seemed clear to us that the disadvantage was simply that women would find it more difficult to pass the MSFT test at this level than men for innate biological reasons. This in turn rendered them liable to be disarmed and subject to the capability procedure leading potentially to their dismissal. We accepted that there appeared to be no evidence that anyone other than the claimant had been the subject of a disciplinary or capability procedure solely relating to failing the MSFT but that did not seem to us to undermine this position or demonstrate that there was no disadvantage. At most it meant that women would have to be fitter and try harder to pass the test than an equivalent male. Pool

[175]The pool will depend on the nature of the PCP being tested. If the claimant is challenging a recruitment criterion, for example, the pool will usually comprise those people who would be eligible for the job but for the criterion in question University of Manchester v. Jones

[1993] ICR 474

(CA).

[176]Once the PCP has been defined, "there is likely to be only one pool which serves to test its effect", and the identification of that pool is "neither a matter of discretion nor of fact-finding but of logic" (Allonby v. Accrington and Rossendale College and Others

[2001] IRLR 364

(CA)). The Court of Appeal in Grundy v British Airways plc

[2008] IRLR 74

stated: “provided it tests the allegation in a suitable pool, the tribunal cannot be said to have erred in law even if a different pool, with a different outcome, could equally legitimately have been chosen”.

[177]The Supreme Court approved of Allonby and Grundy in Essop v. Home Office (UK Border Agency), Naeem v. Secretary of State for Justice

[2017] UKSC 27

where it held that all the workers affected by a PCP should be considered, and all those who are not affected by it excluded.

[178]We would add that AFO's recruited before 14 March 2014 were subject to a different MSFT requiring them to run 7 shuttles to level 5.7. As Section 23 of the Equality Act provides that for the purposes of section 19 there must be no material difference between the circumstances relating to each case and accordingly, we accept that these, almost certainly older officers need to be excluded from the pool. Individual Disadvantage

[179]Both respondent’s agents suggested that a number of medical conditions appeared to impact the claimant's ability to pass the fitness test and that none of these conditions related to her gender. These included:• a heart murmur which delayed her ability to take a repeat test;

• breathing difficulties requiring the use of an inhaler;

• problems with her core requiring physiotherapy;

• problems with her back her running style taking too short strides;

• the claimant ran on her toes which caused her problems;

• mental problems/anxiety resulting in her not being able to test;

• problems with her balance on the Chester Treadmill;

• an apparent panic attack but only after she failed her last attempt at the MSFT.

[180]The claimant’s level of fitness was a central issue in this case. At various points she was unfit and "not fit to test." And doubts were raised as to her motivation. We felt that it was appropriate to take a step back when considering the claimant’s evidence and look at it in context as we earlier mentioned. She faced a number of difficulties throughout months she endeavored to pass. We did not doubt that at least initially she was well motivated and enthusiastic to take up this role and to pass the test. If there was latterly some lessening of this enthusiasm that is hardly to be surprising given the difficulties the claimant encountered. We felt we should start by considering the test itself. If despite her best efforts she was unable to pass, despite having no difficulty in performing the onerous practical tests during training, and with her continued employment in jeopardy we can appreciate that taking the test including repeated failures in the informal attempts should begin to cause her the anxiety she spoke of and the related breathlessness she developed.

[181]It was submitted that evidence of this lack of motivation or non-engagement was her failure to pursue a non- armed career in the Police after her initial failure to be recruited in December 2018. We can well understand why at this stage the claimant took that decision given her experiences but we do not read into that a failure to keep trying to pass the test.

[182]The respondent’s solicitors painted the claimant as an ‘‘undeserving’’ claimant borrowing the expression in Essop (supra). They raised the criticisms levelled at her in the soundings or reports which were referred to at her dismissal meeting and appeal about her general performance unrelated to the fitness test. They suggested she was mediocre and not motivated. The respondents pointed to the fact that the claimant admitted in evidence that she did not study for a particular exam explaining that this was because she was told to concentrate on passing the fitness test. We did not hear direct evidence and this criticism came towards the end of the claimant’s period of employment. We can well understand that the priority for her managers above all else was to get her to pass the MSFT test rather than on less important matters. We also noted that she had apparently not been the subject of warnings about her performance, except in relation to the fitness test and she was oblivious to these criticism until the disciplinary stage. What is clear is that passing the test began to loom very large indeed in her thoughts as it was central to her remaining an AFO. Ultimately, we therefore, placed little weight on these criticisms and rejected the submission that the claimant did not genuinely want the job and that he lack of self-motivation cause her failures rather than the use of a discriminatory test which disadvantages females.

[183]We also considered the argument advances by Mr Crammond that the claimant having passed her IDLP was contractually only required to pass the MSFT test at the lower level that applied to exiting staff. While we accept that the contractual documentation could be clearer we reject the submission. The claimant was recruited on the basis that she could pass the MSFT at 7.6 and as one of the new intake maintain that level in the future. That was the clear intention of the second respondents and part of their agreement with the COP to regain their license. The claimant was fully aware of this and of the need to pass at this level. The second respondent allowed her to continue her employment beyond the IDLP but on the understanding that she had to pass the test or face dismissal. The claimant was well aware of this. There was a common understanding of the position and the need to pass. It was only when facing dismissal the claimant ‘s representative argued that she was now in the pool of staff to which the lower standard applied. There was no evidence that suggested the respondent had ever waived this requirement although we had some sympathy with the Federations position as some of the correspondence was ambiguous. We suspect that the then Chief Constable was trying to keep the Federation and it’s members who had concerns about the enhanced test onside as it were whilst bringing in the test for new recruits such as the claimant. Justification Defence Legitimate Aims

[184]The respondents both argued that the MSFT test was robust and the testing regime was in furtherance of legitimate aims. We considered the guidance given in the case of University of Manchester v. Jones

(1993) ICR 474

by the Court of Appeal in England and to it’s approval of the dicta in the earlier case of Jones v. Chief Adjudication Officer (1990) 533 that the word ‘‘justifiable’’ (used in the 1975 Sex Discrimination Act) required an objective balance between the discriminatory effect of the condition and the reasonable needs of the person applying the condition. The wording now used in the Equality Act (S19(2)d) is that the person applying the discriminatory condition ‘‘cannot show it to be a proportionate means of achieving a legitimate aim’’. It seemed to us that this also requires a balancing act between the discriminatory effect and the needs of the employer.

[185]In Homer v. Chief Constable of West Yorkshire

[2012] 3 All ER 1287

, the Supreme Court identified that justification was the criterion itself that had to be justified, not its discriminatory effect. The assessment of the justification would include comparing the impact on the affected group against the importance of aim to the employer. In any case the provision had to be read in the light of European jurisprudence, in that to be a proportionate means of achieving a legitimate aim, the tribunal must consider both whether it was an appropriate means of achieving the aim, and also whether it was "reasonably necessary" in order to achieve it. In Hardy and Hansons plc v. Lax

[2005] ICR 1565

CA, the Court of Appeal stated that the employer, in showing objective justification, does not have to demonstrate that there was no route other than the discriminatory practice by which the legitimate aim could have been achieved.

[186]We bore in mind the helpful summary given in the EHCR Code of Practice: “5.32 Although not defined by the Act, the term ‘proportionate’ is taken from the EU Directives and its meaning has been clarified by decisions of the CJEU (formerly the ECJ). EU law views treatment as proportionate if it is an ‘appropriate and necessary’ means of achieving a legitimate aim. But ‘necessary’ does not mean that the provision, criterion or practice is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means.”

[187]We accepted that there were a number of legitimate aims being pursued. This was after all an armed police service tasked with vital nationally important tasks. This was not contested by the claimant. We list the aims here:(a) protecting the claimant from harm/risk of harm (by protecting the individual's health by complying with its health and safety obligations).

(b) protecting the claimant's colleagues and/ or members of the public from harm/risk of harm.

(c) ensuring that an armed officer is sufficiently fit to carry out their duties including in emergency situations where weapons are likely to be used.

(d) complying with College of Policing standards.

(e) protecting the organisation from reputational risk.

(f) safeguarding national security by maintaining an efficient and effective police including mutual assistance (interoperability) to other Police Forces.

[188]We accepted that the second respondent was responsible for national security and assisting on a regular basis other Police Forces. In this context we also accepted that it was important to have common standards and that this was a legitimate aim. It allowed for interoperability of personnel. This was a core consideration for the MDP, the COP and other Forces. If the MDP were to supply officers with a lower fitness standard than all other forces then(1) they may not be able to properly perform the role safely and

(2) there would be a risk of claims against the relevant Chief Constables and others and

(3) there would be a legitimate concern that some Chief Constables would not ask them to assist.

[189]The second respondent not only protects its own premises and others of national importance. It works in conjunction with many Home Office Police forces and non-Home Office forces providing AFO's on a regular basis. It also deployed AFOs various Operations designed to protect the public from terrorist attack. The first respondent required its AFO's to be interoperable to effectively work in conjunction with AFO's of other forces. The College of Policing set national Police Standards and all 43 Home Office Forces required to comply with those standards The other six non-Home Office Police Forces also comply with the fitness standards for AFO's otherwise there would be noncompliance with national standards. If the national standards were not maintained we accepted that there would be a legal risk of being sued. Mr Walker gave the example of a serious incident resulting in loss of life or injury in circumstances where it was caused by an AFO whose Police Force adopted a fitness standard lower than the national standard. We also accepted his submission that the second respondent had already been prejudiced by the suspension of its College of Policing firearms training licence. This had, as we had found impacted morale and resulted in adverse publicity. He indicated that this matter was considered at Ministerial level.

[190]In considering proportionality the importance of the aims of the Second Respondent the following seemed to us to be the most crucial factors: Protecting health and safety; Ensuring an appropriate standard level of fitness of AFOs; Complying with nationally recognised fitness standards adopted by all other Police Forces in the UK; Protecting a Government department and the Government from reputational damage; Protecting national security and maintaining an effective police service.

[191]In our estimation the MSFT and the attendant 7.6 standard, while not attracting some criticism was both appropriate and necessary. They faced a choice of this standard or the lower standard. We noted what the INM had stated: ‘‘Should interoperability be essential for the MDP, the only option would appear to be the adoption of the Home Office fitness standards by the MDP’’. The Tribunal concluded that the second respondents had a strong case that the 7.6 standard was needed in furtherance of these legitimate aims. Considering the wider picture it was reasonable for Police Forces, the COP and the second respondents to focus on the fitness required of an armed officer to be able to deal with stressful and physically demanding incidents and how best to measure that fitness. The INM report was unsatisfactory in a crucially important aspect namely in its assessment of a scenario that was widely regarded as being too easy in that it was not physically demanding enough to replicate the demands of a real situation. If there was doubt hanging over this assessment that would be something that would have to be taken very seriously indeed given the importance of the matter. The report acknowledged some of these weaknesses. In the light of this it was hardly surprising that it was held that it was not safe to rely on it.

[192]The MDP faced a difficult choice when choosing an appropriate standard of fitness and way of measuring it. The MSFT itself was only one method of testing. It has it’s proponents and critics but it seemed to us to have many advantages particularly when regularly testing large groups of people. It was not perfect but other methods were also open criticism. Mr Crammond argued that the gold standard was direct gas testing (which we accepted was cumbersome and difficult to use). This was criticised by Professor Brewer. He used the analogy of a car engine and how efficient it was in burning fuel. His position was that if a candidate was very fit their oxygen uptake might be relatively low and although in laymen’s terms they might be very fit they might fail the test as not reaching the required level of oxygen uptake.

[193]The MDP as an employer had to have regard to issues of potential sex discrimination and because other Forces had adopted the MSFT and the standard of 7.6 that in itself is not sufficient justification for following suit. If it had judged the standard too high or the basis for choosing the MSFT test unsound then it would not escape potential liability for claims of sex discrimination because it was following others. The situation here however is that to work in an interoperable basis it had to adopt this test.

[194]The adoption by the second respondent of the test and standard has to be appropriate and necessary. There is an element of discretion afforded to employers in such a situation. The employers here were really faced with the choice of standards and choose the one they thought was most appropriate, of the two standards available. The higher standard had also been adopted by the other Forces and which allowed full interoperability between their personnel.

[195]The second respondent’s submission that the MSFT and 7.6 standard are a proportionate means of achieving a legitimate aim is one we feel driven to accept. Where the claim must succeed is that this is not the end of the matter. The application must be proportionate in the circumstances especially standing the clear dangers highlighted by the INM and the COP regarding the use of the MSFT and the 7.6 standard and the need, as reflected in the COP guidance, to consider alternatives. Our understanding was that the COP would accept a ‘‘pass’’ using the Chester Treadmill or using some other validated piece of equipment. Role of COP and Section 111 of the Equality Act

[196]Section 111 of the EA provides: “(1) A person(a) (A) must not instruct another

(b) (B) to do in relation to a third person

(c) (C) anything which contravenes Part 3, 4, 5, 6 or 7 or section 108(1) or (2) or 112(1) (a basic contravention). (2) A person (A) must not cause another (B) to do in relation to a third person (C) anything which is a basic contravention. (3) A person (A) must not induce another (B) to do in relation to a third person (C) anything which is a basic contravention. (4)For the purposes of subsection (3), inducement may be direct or indirect. (5)Proceedings for a contravention of this section may be brought— (a)by B, if B is subjected to a detriment as a result of A's conduct; (b) by C, if C is subjected to a detriment as a result of A's conduct; (c) by the Commission. (6) For the purposes of subsection (5), it does not matter whether— (a) the basic contravention occurs; (b) any other proceedings are, or may be, brought in relation to A's conduct. (7)This section does not apply unless the relationship between A and B is such that A is in a position to commit a basic contravention in relation to B. (8) A reference in this section to causing or inducing a person to do something includes a reference to attempting to cause or induce the person to do it. (9) For the purposes of Part 9 (enforcement), a contravention of this section is to be treated as relating— (a) in a case within subsection (5)(a), to the Part of this Act which, because of the relationship between A and B, A is in a position to contravene in relation to B; (b) in a case within subsection (5)(b), to the Part of this Act which, because of the relationship between B and C, B is in a position to contravene in relation to C.”

[197]This section was considered in the case NHS Trust Development Authority v Saiger

(2018) ICR 297

. A Tribunal had found the section engaged though inference and not through primary facts. It held that being in a position to instruct or induce a breach, or participating in a discussion, were not enough, of themselves, nor was “materially influencing” a breach. There must be evidence that there was actual instruction or inducement, not just that a party was able to instruct or induce. Mr Crammond referred us to the case of CRE v Imperial Society of Teachers of Dancing

(1983) ICR 473

and the helpful reasoning contained in the Employment tribunal decision in Wisbey v Commissioner of the City of London Police and College of Policing Case No: 2207660/2017.

[198]The role of the COP was examined in the evidence before us. Ms McGrady argued what Mr. Crammond referred to as a ‘‘pleading point’’ namely that the original ET1 sought to claim against the Third Respondent on the basis that the MDP was required to have a License and that a prerequisite for such a license was staff passing the approved fitness standards. It became clear that there was no actual requirement for the MDP to have a license in the sense that they could in theory still act as a police force without a licence.

[199]Ms O’Grady pointed to the recommendations requested by the claimant and noted that one was ‘’not to require MDP to apply the PCPs’’ referring to the standards needed to obtain a license. She referred the Tribunal tom the case of Chandhok v Tirkey

(2015) ICR 527

as authority for the proposition that the ET1 was the important measure of a party’s claim.

[200]There are a number of difficulties in our view with this submission. The first is that the claim was raised at the hearing and the third respondent had ample opportunity to deal with the matter. Secondly Tribunals take a broad view of the pleadings and in the absence of any prejudice, and we could see none, are entitled to ascertain if a claim is made out on the facts it has found. It is true that the COP does in fact require any force that wants a license to adhere to these standards. The ET1 does go too far in suggesting that a Force such as the MDP must have a license but for the reasons set out in the Judgment it is almost unthinkable that they would not want to have such a license to allow them to fulfill their commitment to assist other Forces and to maintain common standards.

[201]Finally, as the case law suggests the ambit of the section under which the claim is made is relatively wide and is not just confined to ‘instructing’ a discriminatory state of affairs to exist. Here the crucial part of the section contains the words ‘‘causing and inducing’’ In our judgment the evidence forcefully suggested that the influence of the COP and it’s standards are re-organised widely as being essential for a Force to operate. There was both a carrot (the License) and a stick which was not to have a License and to in practice be likely to be excluded from being able to provide support to other Forces. In addition, we heard evidence that when the License was suspended (albeit for more than just a failure to adhere to the MSFT standard) it led to a loss of prestige and impacted on morale.

[202]However, for the COP to be caught by the section the crucial problem for the claimant is that the COP was prepared to accept an alternative to the 7.6 MSFT which was a pass on the Chester Treadmill apparatus or some other approved device. This was made clear in correspondence to Chief Constables in November

[206](JBp670). The Second Respondents were clearly aware of this alternative as it is mentioned during the capability process. Our understanding of the COP’s position was that they would have in fact have considered some other scientifically validated alternatives to the MSFT not only the Treadmill test but gas/oxygen analysis. There was no discussion between the Second Respondent’s management and the COP about the claimant’s position. The possible difficulty she might have as a female in having to pass the MSFT was not considered simply that she had failed and didn’t appear able to do the Treadmill test. In these circumstances the COP are saved though the provision by them of appropriate advice on the use of alternative testing means from any discrimination arising through the use of the MSFT and the 7.6 standard. National Security Exemption- Section 192 of the Equality Act 2010

203. We then considered the Section 192 of the EA: "A person does not contravene this Act only by doing, for the purpose of safeguarding national security, anything it is proportionate to do for that purpose."

204. Finally it was argued that given the heightened risk of terrorist attacks in the United Kingdom the second respondent was required to ensure, at the material time, that its AFOs could be deployed for "safeguarding national security" throughout the United Kingdom and that accordingly the second respondent was required to recruit and retain AFOs (who are all armed) to be deployed for such purposes subject to such fitness testing levels as the COP considered appropriate. Mr Walker argued that even if the MSFT standard of 7.6 was discriminatory the second respondent would not be in breach of the Equality Act because of the terms of Section 192 of the Equality Act. He submitted that reference to proportionality in the section was different to the reference to proportionality in the justification defence under Section 19 (20 (D) which reads "A cannot show it to be a proportionate means of achieving a legitimate aim".

205. We did not accept that the Section appears to be engaged here. We believe that Parliament envisaged that something out of the ordinary would probably have to occur to engage this section. It appears to us that such a provision does not derogate from what might be described as the day-to-day duties imposed by the Equality Act in some blanket fashion otherwise it would be pointless to provide for such duties in the first place. We have found that the MSFT as a test and the 7.6 standard are appropriate but with the safeguard of alternative testing for someone in the claimant’s position The section appears to envisage a particular action taken for the purposes of protecting national security. The act of adopting the MSFT as a fitness standard at a particular level was not in itself an act designed to protect national security except in a very wide and general sense.