10 Feb 2021
The Employment Appeal Tribunal (EAT) has upheld a ruling that a pregnant police officer was discriminated against due to a policy that instructed pregnant officers to be transferred to a desk-based role.
If an employee notifies you that they are pregnant, your risk assessment should highlight potential dangers to them. In some cases, the assessment may highlight a need to temporarily alter their role. If this is done unfairly, you may face a claim of discrimination.
The key piece of legislation here is Section 18 of the Equality Act 2010. It outlines that you discriminate against a woman if you treat her unfavourably because of her pregnancy. Indirect discrimination can also occur, as dictated by Section 19. This happens when a provision, criterion or practice (PCP) is applied that places a group at a disadvantage on the basis of their protected characteristic. Employees cannot be indirectly discriminated against on the basis of being pregnant. However, they can be indirectly discriminated against due to their sex.
When determining if there has been a section 18 breach, the case of Williams v Trustees of Swansea Pension & Assurance Scheme is key. This case outlines that tribunals should establish the relevant treatment, before determining if it was unfavourable to the claimant in question.
Chief Con of Devon and Cornwall Police v Town
An employee of Devon and Cornwall Police was moved from her position on the Response Team. She was transferred to a desk-based role at the Police’s Crime Management Hub after disclosure of her pregnancy. This was because of a policy which instructed that a person on ‘restricted duties’ for longer than two weeks would be transferred to the Hub. However, there were some ‘exceptional circumstances’.
The employee outlined adjustments to her working day that would’ve allowed her to remain on the Response Team. These included interviewing suspects and having reduced night shifts. None of these adjustments were considered. This was despite a risk assessment supporting her claims.
The employee felt forced to move to the Hub. This was despite being told that this was regularly done to employees on ‘restricted duties’. She then took time off work for stress and anxiety. Later, she brought two claims to the employment tribunal (ET). She argued that she had suffered pregnancy discrimination and indirect discrimination on the basis of her sex. This was contrary to sections 18 and 19 of the Equality Act 2010 respectively.
The tribunal upheld both claims.
The Judge ruled that her pregnancy was not the main reason for the change in her role. However, despite this, the ET found that the employee had received unfavourable treatment on the grounds of it. The police argued that all decisions made were due to ‘business need’. However, the context of all discussions surrounding the employee’s situation was her pregnancy.
The tribunal held that the decision to place the employee in the Hub had also put her at a disadvantage due to being a pregnant woman. They outlined that pregnant women were particularly disadvantaged by the organisation’s policy. The organisation had failed to outline the ‘exceptional circumstances’ that would avoid employees being placed in the Hub. They’d done this despite the fact that concerns had been raised when the policy was first introduced in 2016.
The organisation didn’t contest that the employee’s treatment was due to her pregnancy. However, they appealed against both findings. In relation to section 18, they stated that the tribunal failed to consider the purpose behind the claimant being moved to the Hub. The organisation stated it was to protect her from danger whilst pregnant. When considering section 19, they argued that pregnancy was not a relevant protected characteristic for indirect discrimination. The disadvantage suffered related to being pregnant, not being a woman.
The EAT dismissed the appeal on both grounds. Considering section 18 first, they found it was clear the claimant was not complaining about being removed from danger. Instead, they were contesting being transferred to the Hub without consideration of alternative solutions. This was what had placed her at a disadvantage. The move had been caused by her pregnancy and was unfavourable. The EAT considered that was the end of this point.
In relation to section 19, they found it was not necessary that all women suffered from this particular disadvantage. This was because women, as a group, were more likely to be subject to an enforced transfer because of the PCP.
Note for employers
Pregnant employees have the right not to be unfairly treated as a result of their condition.
If you identify a risk that cannot be avoided, consider adjustments to working conditions or hours of work. The adjustments will depend on what is reasonable in the circumstances. As this case demonstrates, it is a good idea to communicate clearly and frequently with the affected employee. If they have suggestions for adjustments, you should consider them, even if they are ultimately not utilised.
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