The Claimant complained of the application of a provision, criterion or practice (“PCP”) in the form of a policy setting a fitness level requirement for authorised firearms officers in the Ministry of Defence Police (“MDP”). The ET accepted that this was a PCP that had been applied to the claimant, which put women at a disadvantage, in that they found it harder to meet the level required, and which put the Claimant to that disadvantage. It went on to find that the requirement to meet the fitness level in question was a proportionate means of achieving legitimate aims of the MDP, but that its application to the Claimant was not proportionate as an alternative means of establishing the required standard of fitness had not been offered to the Claimant. The MDP appealed.

The EAT allowed the appeal in part. To the extent that the MDP sought to challenge the ET’s finding of group and individual disadvantage in relation to the application of the PCP found by the ET, that was an attempt to re-argue the case below and failed to engage with the explanation provided as to why that case had (permissibly) been rejected. As for the MDP’s perversity challenge to the ET’s finding in respect of the failure to provide the Claimant with an alternative means of establishing the required standard of fitness, and its contention that the ET’s reasons were inadequate in this regard, these grounds did not withstand scrutiny and were also dismissed. The MDP had, however, raised valid points of concern in relation to the ET’s assessment of proportionality: its reasons did not adequately identify the alternative means in question, and did not demonstrate engagement with the question whether this would (or could) have provided a less discriminatory alternative, or, at least, did not properly explain the ET’s analysis in this regard.