'Good intentions' held not to be a defence against indirect discrimination
Chief Constable of Devon and Cornwall Police v Mrs N Town: UKEAT/0194/19/LA
The recent case of Chief Constable of Devon and Cornwall Police v Town acts as a timely reminder for employers to consider the impact of applying broad policies to their workforce, particularly when implementing reasonable adjustments for pregnant employees. In this case, a pregnant police officer brought claims for pregnancy discrimination and indirect sex discrimination in response to being removed from front line responsibility to a 'back-office' role. The police force unsuccessfully argued that its objective was to provide a safe working environment and therefore could not be unfavourable treatment. For the full judgment, please see here.
What is indirect discrimination?
Indirect discrimination is set out within the Equality Act 2010 and is concerned with policies, procedures and rules which are applied equally and in the same way for everybody, but disadvantages a group of people who share a protected characteristic. There is no legal provision for indirect pregnancy or maternity discrimination and, therefore, a claim of that nature would need to be brought under the sex discrimination rules.
An indirect discrimination claim must point to a provision, criterion or practice (PCP) applied by the respondent. This is interpreted widely by the Employment Tribunal (ET) and, as a result, a respondent's action may be challenged even where there is no formal policy in place. When assessing whether a group of people are disadvantaged by the PCP, a comparison pool is usually established, containing both persons who are disadvantaged and persons who are not. The PCP must be a "but for" cause of the group and individual disadvantage.
A respondent may only avoid liability where they can prove 'objective justification' by showing that its actions were a proportionate means of achieving a legitimate aim.
Facts of the Chief Constable of Devon and Cornwall Police v Town case
Mrs Town (the Claimant) was a serving police officer. In November 2017, she informed her line manager that she was pregnant. An initial risk assessment was carried out which determined that the Claimant was fit to remain in her front line role but that adjustments were required, which included having to wear plain clothing and working fewer night shifts. However, Devon and Cornwall Police (the Respondent) had a general policy that police officers on restricted duties would be transferred to the Crime Management Hub (the Hub), which involved being assigned to back-office duties dealing with low level crime. The Claimant was informed of her assignment to the Hub during her 12th week of pregnancy. The move had a negative impact on her health and she suffered depression in consequence.
What did the ET find?
The Claimant brought successful claims of maternity discrimination and indirect sex discrimination. The ET ruled that the decision to move the Claimant put her at a disadvantage; her mental health was placed at risk and the force had ignored the risk assessment that had been carried out previously. Moreover, the ET considered the transfer to desk based roles placed pregnant woman in particular at a disadvantage.
The ET found that the Respondent had discriminated against the Claimant on two grounds:
- Firstly, on grounds of pregnancy under section 18 Equality Act 2010; and
- Secondly, indirectly on grounds of her sex under section 19 Equality Act 2010, on the basis that women were more susceptible to enforced transfer under the policy because pregnancy (as well as ill health) would lead to the application of the policy.
What did the Employment Appeal Tribunal (EAT) find?
The Respondent appealed the decision, stating:
- that the relevant treatment for the purpose of section 18 was removing her from danger and was not therefore unfavourable; and
- that any “particular disadvantage” under section 19 was suffered by pregnant women and not women in general.
The appeal failed on both grounds, with the EAT commenting:
- the treatment of which the Claimant complained was not that she had been removed from danger but that she had been transferred to the Hub which she did not want and which made her ill. The ET had found as facts that this treatment was unfavourable and that it was because she was pregnant; and
- it was not necessary for the purpose of section 19 that all women suffered from the particular disadvantage, if women as a group were more likely to be subject to an enforced transfer because of the PCP'.
What can employers take from this?
This case outlines how employers should approach the, often complex, adjustments required for pregnant members of staff. The judgment emphasises the importance of not merely carrying out risk assessments, but taking note of the results and acting accordingly in the specific circumstances, all while in consultation with the employee. In this case, it was irrelevant that some women would regard the transfer as an advantage; the point being that women were more likely to be susceptible to an enforced transfer than men. While the decision to move the Claimant to a back-office role was perhaps motivated by good intentions, the result was to impact the Claimant's health during her pregnancy. Indeed, by not giving thought to the impact this would have on the Claimant's particular circumstances the force was found to have discriminated against her.