A female police officer failed in her tribunal claim that she had been subjected to indirect sex discrimination by the operation of a policy that required disclosure of personal relationships with work colleagues, as the policy was justified. She appealed to the EAT on the grounds that the tribunal had failed to identify correctly the pool for comparison and erred in finding that the policy was justified. The EAT agreed that the tribunal had erred by focusing on the disadvantaged, rather than the advantaged group.
The task of identifying the relevant pool can be difficult and is often, in practice, determinative of the case. Useful guidance was given in this case on how to identify the correct pool for comparison purposes. The EAT applied the House of Lords decision in Rutherford v The Secretary of State for Trade and Industry (No. 2)  IRLR 551 which confirmed that the starting point should be the whole group to which the provision, criterion or practice is applied. For example, Rutherford, which concerned the question of whether provisions precluding unfair dismissal claims by those over the age of 65 were lawful, held that the correct pool was the whole working population and not just those to whom "retirement had some meaning". Similarly, the EAT held that the correct pool here, was the whole of the Chief Constable's workforce as the policy was directed at everyone employed in the police authority. To determine disparate impact, consideration should be given first to the advantaged group i.e. whether a considerably smaller percentage of women than men are able to satisfy the relevant condition. In this case, the EAT considered (obiter) that the individual would have been unlikely to be able to show a disparate impact on women even if the pool were confined to all constables, as she had contended. (Faulkner v The Chief Constable of Hampshire Constabulary)