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11 December 2017

European Court of Justice rules that minimum height requirement for Greek police is indirect sex discrimination

Under the EU Equal Treatment Directive, indirect sex discrimination in recruitment selection conditions is unlawful unless the conditions can be objectively justified by a legitimate aim, and the means of achieving that aim are proportionate and necessary. In Ypourgos Esoterikon v Kalliri, the ECJ has recently held that a minimum height requirement to join the Greek police force was indirect sex discrimination and could not be justified.

Under Greek national law, male and female candidates for the Greek police force have to be at least 1.7 metres tall. Ms Kalliri’s application was rejected because she was only 1.68 metres tall. The Greek courts referred her claim of sex discrimination to the ECJ for a ruling on whether the minimum height requirement was compatible with the EU Equal Treatment Directive.

The ECJ has now held that the minimum height requirement constituted indirect sex discrimination against women, since far more women than men were disadvantaged by it. Although the Greek government’s aim of enabling police officers to carry out their functions effectively was a legitimate aim, the minimum height requirement was not a proportionate means of carrying out that aim for four main reasons:

  • not all police duties require the use of significant force or a particular physical aptitude;
  • in any event, physical aptitude is not necessarily connected with being over a certain height;
  • until 2003, Greek law required women to be a minimum height of 1.65 metres to join the police, and men 1.7 metres. The minimum height requirement for women to join the Greek armed forces, port police and coastguard was 1.6 metres; and
  • the Government’s legitimate aim could be achieved by measures that were less disadvantageous to women, such as carrying out pre-selection physical assessments.

This case is a reminder to employers of the risks of making assumptions about physical ability. Courts will carefully scrutinise blanket restrictions and requirements which prevent access to employment, and employers should therefore always consider whether there are alternative, non-discriminatory methods which can be used to determine a candidate’s suitability.

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