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Jean-Yves Gilg

Editor, Solicitors Journal

Joining forces

Joining forces


Does 'soldier discrimination' amount to indirect discrimination on the ground of sex, ask Taha Idris and Kai Graf von Pahlen

In December 2007, the prime minister requested a report from MP Quentin Davies to evaluate the relationship between the Armed Forces and the rest of society. The report refers to a several recent incidents of 'soldier discrimination'. During 2007, a soldier was refused entry to Harrods, and soldiers returning from Afghanistan were told to change into civilian clothes at Birmingham Airport. One of the most shocking examples of discrimination against soldiers was the Metro Hotel, which refused a wounded soldier a room on 4 September 2008 '“ forcing him to spend the night in his car.

The report to the prime minister criticised the absence of legal protection for our soldiers, saying: 'It is quite intolerable that those who wear the Queen's uniform should be denied access to public or commercial services'¦ but there is no legal protection for the targets of such discrimination.'

Tempting though it is to embark upon a detailed critique of the need for laws to protect our soldiers (whether soldiers of the Armed Forces of the UK; the Royal Navy, the British Army or the Royal Air Force) it is not the purpose of this article to do this but to establish whether discrimination against soldiers put one sex (men) at a disadvantage and, if so, whether such discrimination, therefore, amounts to unlawful, indirect discrimination on the ground of sex. This would allow the aggrieved soldier to seek compensation; not because he has been discriminated as a solider, but because he has been discriminated as a man.

Relevant legislation

As it has been established that 'soldier discrimination' exists, one must now analyse how our sex discrimination laws apply to such discrimination. Council Directive 2004/113/EC implements the principle of equal treatment between men and women in the access to and supply of goods and services. Under section 29 of the Sex Discrimination Act 1975 (SDA), it is unlawful for a person concerned with the provision of goods, facilities or services to discriminate on the ground of sex against a person seeking to use or obtain those goods, facilities or services.

Under section 1(1)(b) of the SDA, the definition of indirect discrimination in the provision of goods, facilities and services is: a person discriminates against a man if he applies to him a requirement or condition which he applies or would apply equally to a woman but which is such that the proportion of men who can comply with it is considerably smaller than the proportion of women who can comply with it.

Pool for comparison

As the soldier would have to demonstrate that the proportion of men who can comply with the 'no soldier' condition is considerably smaller than the proportion of women who can comply with it, the starting point for the court is to determine the pool for comparison '“ the appropriate pool of people among whom the comparison is to be made. Goods, facilities and service providers, such as Harrods and the Metro Hotel, usually offer their goods, facilities and services to the public in general.

In Commission for Racial Equality v Dutton [1989] Q.B. 783 at 803, Nicholls LJ used 'the rest of the population in general' as the pool for a public house. Therefore, one potential pool would be the whole population who may obtain the goods, facilities or service in question, hence the whole UK population.

Disparate impact

A legal practitioner would have to refer to statistics to show that the proportion of men who can comply with a 'no soldiers' condition is considerably smaller than the proportion of women who can so comply. Per Mr Justice Waite in Kidd v DRG at 196: 'Cases of alleged indirect discrimination are liable to involve the presentation of population statistics'¦ for the purpose of demonstrating or refuting a particular result'¦'

While the business of war has traditionally been the preserve of men, the government is now committed to maximising opportunities for women in the Armed Forces. However, only 71 per cent of posts in the Royal Navy, 67 per cent of posts in the British Army and 96 per cent of posts in the RAF are open to women. Moreover, all cap-badged posts in the Regular Infantry, Household Cavalry and Royal Armoured Corps have been closed to women in order to ensure effectiveness in combat (Ministry of Defence, 2008, 'Equal Opportunities in the Armed Forces FAQS').

In April 2008, there were 187,100 soldiers in the Armed Forces, 17,620 women and 169,430 men. Female soldiers represented 9.4 per cent of the Armed Forces' total strength while male soldiers represented 90.6 per cent ('Defence Analytical Services and Advice', 2008, Table 2.13 Strength of UK Regular Forces by sex and Service at 1 April each year).

By contrast, there are more women than men in the UK. In mid-2007, there were 31 million women in the UK population, compared with 29.9 million men, (National Statistics, 2008, 'Population Boys outnumber girls, women outnumber men', 26 September).

Two-figure comparison

In Seymour-Smith C-167/97 [1999], the European Court of Justice considered a limited test to determine indirect discrimination, stating: 'The national court must verify whether the statistics'¦ indicate that a considerably smaller percentage of women than men is able to fulfil the requirement'¦ If that is the case, there is'¦ sex discrimination'¦' The ECJ compared two figures, hence 'two-figure comparison'.

The 169,430 male soldiers and the 17,620 female soldiers are only a very small proportion of the whole UK population. I estimate that approximately 99.4 per cent of the UK's male population and approximately 99.94 per cent of the UK's female population can comply with a 'no soldier' condition. Thus, the service provider could advance the argument that the number of men affected by the 'no soldier' condition is not 'considerably smaller' than the number of women affected. There would only be an estimated 0.54 per cent disparity. The goods, facilities and service provider may refer to the Seymour-Smith case, where the ECJ found the disparity of 8.5 per cent '“ a strikingly larger disparity '“ to be 'not considerable'.

Furthermore, the provider may argue that there can be no discrimination on the ground of sex because for every man who cannot comply with the 'no soldier' condition, there are approximately 199 men who can comply and for every woman who cannot comply, there are approximately 1,999 women who can comply. It follows that if the court were to apply the two-figure comparison, the soldier would be unlikely to succeed.

Four-figure comparison

In the Seymour-Smith case, the ECJ considered a test that is less limited, saying: 'The best approach to the comparison of statistics is to consider, on the one hand, the respective proportions of men'¦ able to satisfy the requirement'¦ and of those unable to do so, and, on the other, to compare those proportions as regards women'¦' Thus, the ECJ considered four figures as opposed to two.

Moreover, in the House of Lords case Barry v Midland [1999] IRLR 581 HL at 586, Lord Nicholls stated: 'A better guide will often be found in expressing the proportions in the disadvantaged group as a ratio of each other. In both my examples the ratio is 9:1. For every man adversely affected there are nine women.'

In Harvest Town Circle v Rutherford [2001] IRLR 599 at 602, Mr Justice Lindsay said ''¦ it will be proper '¦ to look'¦ to the respective proportions in the disadvantaged groups expressed as a ratio of each other'¦ if there is any doubt as to the obviousness of the case, the tendency should always be to look at a second or further form of comparison'.

The male soldier claimant would therefore argue that his case is not 'obvious' and that the four-figure comparison should be applied. The soldier would support this claim by expressing the proportions in the disadvantaged group as a ratio of each other. In relation to a 'no soldier' condition, the ratio is 9:1. For every female soldier adversely affected, there are nine male soldiers adversely affected. This is indeed the same ratio as Nicholls referred to above.

In the Court of Appeal case Jones v Chief Adjudication Officer [1990] IRLR 533, Lord Justice Mustill said ''¦the process for establishing discrimination'¦ takes the following shape'¦ Divide the relevant population into groups representing those who satisfy the criterion and those who do not'¦. Ascertain what are the actual male/female balances in the two groups'¦ If women are found to be under-represented in the first group and over-represented in the second, it is proved that the criterion is discriminatory.'

One would begin by dividing the whole population into the following 'groups':

  • Group 1: people who can comply with the 'no soldier' condition '“ people who are not soldiers (60,900,000 people in the UK minus 187,100 soldiers); and
  • Group 2: people who cannot comply with the 'no soldier' condition '“ 187,100 soldiers.

Then, Group 1 and Group 2 must be sub-divided into groups of men and women:

  • Group 1a: men in the UK who are not soldiers '“ 29,900,000 minus 187,100 male soldiers; and
  • Group 1b: women in the UK who are not soldiers '“ 30,100,000 minus 17,620 female soldiers.
  • Group 2a: male soldiers in the UK (187,100); and
  • Group 2b: females soldiers in the UK (17,620).

It follows that Group 1b is larger than Group 1a and Group 2a is larger than Group 2b.

It appears that men are underrepresented in Group 1 (non-soldiers), which is 49 per cent male, while being overrepresented in Group 2 (soldiers), which is 90.6 per cent male.

It would follow that Lord Mustill's requirements are fulfilled and discrimination against men is proved. Thus, if the court were to apply the four-figure comparison, a male soldier claimant would be likely to succeed in a claim for sex discrimination if he has been discriminated as a soldier.