Height Discrimination: The Short Bus Driver

Caragh Bailey
03/02/2022
16
3 min read
Height Discrimination: Short Bus Driver, a case study by Employment Law Friend

Short bus driver Tracey Scholes, 57, was the first woman bus driver in Greater Manchester, having now been employed in the role for 34 years. She is also 5 ft tall. Late last year her employer bus, Go North West, started using new buses on the route which Ms Scholes drove.

The new buses had a new pillar on an assault screen to protect drivers, resulting in the wing mirrors being positioned differently, such that Ms Scholes had to lean back to use the mirror, leaving her unable to simultaneously reach the pedals.

The obvious safety problems with this meant that Go North West tried to reallocate Ms Scholes to a different bus and route, on new terms and conditions, but this resulted in a reduction in her hours of work, and therefore a salary drop.

Ms Scholes, a widow who supports three children, refused to accept this, and was dismissed shortly before Christmas on “capability” grounds. A major media campaign was launched by her union, Unite, which gathered 25,000 signatures in support of her, in addition to much press attention. Unite, and also the TUC, both campaigned on her behalf to get her “back in the driving seat”.

At an appeal hearing on 17 January 2022, Ms Scholes was reinstated, working a different bus and route than previously, but crucially receiving the same pay as she had before.

Although the exact detailed facts are disputed – and Go North West are adamant they do not operate any height restrictions on recruitment and employ many bus drivers who are shorter than Ms Scholes – this case provides a good illustration of indirect discrimination on grounds of sex.

A job requirement that an employee is at least a certain height, for example 5ft 5, is going to be fulfilled by fewer women than men. Of course, some women will fulfil this requirement, and occasionally some men will not. However, a significantly higher proportion of men will be able to fulfil this requirement than women, and so a job requirement of this nature would amount to indirect sex discrimination.

Employers can justify indirect discrimination: if a requirement is a proportionate means of achieving a legitimate aim then notwithstanding the disproportionate impact on women (or a particular ethnic minority, religious group and so on), the policy is not considered to amount to unlawful discrimination.

This is why Go North West were keen to emphasise that they recruited drivers of all heights, so no woman could claim she did not get a job offer from them based on her height. However, indirect sex discrimination does not only apply to recruitment: in Ms Scholes case not being a particular height meant she could not safely work on particular buses and was then offered inferior terms and lower pay.

Although the need to see out of the wing mirror and drive safety would undoubtedly meet the requirements of justifying discriminatory impact, the question still arises about why such adjustments to buses were made, and whether a different adjustment could have been safely and reasonably made to enable Ms Scholes and other employees, overwhelmingly women, to continue to safely drive them, therefore not suffering a deduction in pay.

The details regarding this are not public, and because of the renewed offer on appeal, probably never will be. In addition to a neat practical illustration of indirect sex discrimination, this case also demonstrates how unions can sometimes galvanise publicity and wide support: without that it seems likely that Go North West would not have upheld Ms Scholes appeal, and she would have been out of a job.

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