Unfavourable Treatment and Pregnancy Discrimination
Employers are under a legal duty to carry out individual risk assessments with pregnant employees. Failure to carry out such an assessment is likely to amount to a claim for pregnancy discrimination under Section 18 of the Equality Act 2010.
However, although well-intentioned, if a blanket policy is applied regardless of individual circumstances or wishes, a pregnant employee may have a claim for pregnancy discrimination, particularly if it can be evidenced that such treatment was unfavourable. Just such an instance arose in the case of Chief Constable of Devon and Cornwall Police v Town  IRLR 235 (EAT)
The claimant, Mrs Town, was a police officer with Devon and Cornwall police (the respondent). She became pregnant and informed her line manager about this. He carried out a risk assessment with Mrs Town which confirmed she could remain in her existing role on what was termed ‘restricted duties’. This meant in plain clothes and working fewer night shifts. This, for Mrs Town, was an ideal solution; she greatly enjoyed her job as a Response Officer, getting on well with her colleagues, who were supportive of her.
About a month after this new arrangement had started, Mrs Town was informed that, due to a general policy regarding officers on restricted duties, senior management had decided to move her to the Crime Management Hub, which was a sedentary back-office role, not involving responding to calls and away from her colleagues. This was a different role from the one she carried out before becoming pregnant.
Working in a sedentary back-office role was not what Mrs Town wanted and was not identified in the risk assessment. It appeared that management had ignored the risk assessment carried out by her line manager.
The claimant took on the new role, but as she had predicted in written representations she made when she first told the force about her pregnancy, she began to suffer stress, anxiety and migraines. This caused her to be off work for a while; she returned to the Response role a few weeks later, but then went on maternity leave.
She brought claims in the employment tribunal under Sections 18 (pregnancy discrimination) and 19 (indirect discrimination) of the Equality Act 2010.
What did the employment tribunal say?
The employment tribunal ruled that when the employer decided to move the claimant, it put her at a disadvantage; her mental health was jeopardised, and no account had been taken of the risk assessment that had been carried out when she first announced she was pregnant.
In addition, the tribunal felt that the move would be regarded by someone in the claimant’s position - “an ambitious front-line police constable” – as a retrograde step in their career, and therefore unfavourable.
Therefore, the tribunal ruled that the respondent had discriminated against the claimant on two grounds: firstly, discrimination because of her pregnancy under Section 18 of the Equality Act, and secondly, indirect discrimination on the grounds of her sex under Section 19 of the Equality Act 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 is indirect discrimination?
Indirect discrimination occurs when a provision, criterion or practice is applied across the board, but places someone who shares a protected characteristic at a particular disadvantage due to that protected characteristic.
There is a potential defence to indirect discrimination - namely justification - if it can be shown that the rule or requirement is a ‘proportionate means of achieving a legitimate aim’. What is considered ‘proportionate’ and what is deemed ‘a legitimate aim’ will depend on the circumstances of each case and a number of factors are likely to be of relevance.
The Employment Appeal Tribunal
Devon and Cornwall Police appealed the tribunal’s decision. They submitted that the relevant treatment for the purpose of Section 18 was to remove her from danger; and therefore, not unfavourable.
A further argument made was that if there was a particular disadvantage under Section 19, then it was suffered by pregnant women, and not by women in general. This was a key argument for Devon and Cornwall Police because a claim of indirect discrimination cannot be brought based upon the protected characteristic of pregnancy.
The appeal failed on both grounds. The EAT ruled that, in response to the first point, the move to the Hub was enforced, took Mrs Town away from a supportive team, doing work she clearly enjoyed and exposed her to the risk of harm to her mental health. This was clearly unfavourable and had happened because of her pregnancy, therefore counting as discrimination under Section 18 of the Equality Act 2010.
In response to the employer’s second point, the EAT ruled that the protected characteristic of sex did apply in this case. The EAT pointed out:
“It is not necessary for every member of a group to be at a particular disadvantage for it to be said that the members of the group are at a particular disadvantage if a member of the group is more likely to be disadvantaged than the comparative group. That is plainly the case here since only women can get pregnant and pregnancy is an automatic trigger for the application of the policy and women are therefore plainly disproportionately liable to be transferred.”
What should employers bear in mind?
It is clear from this case that adjustments required for pregnant members of staff are often more complex than might at first appear and require a careful approach. It is important not just to carry out a risk assessment as a box-ticking exercise and then ignore it, but to take the results into consideration and act on them, while consulting with the affected pregnant member of staff. Consultation with pregnant staff is absolutely key.
In this case, the assumption had been made that Mrs Town would welcome the transfer to back-room duties, although it is clear from what happened that this was far from the case. The blanket policy based on that assumption meant that the claimant’s health was significantly affected during her pregnancy. Not taking into account the claimant’s personal circumstances contributed to the decision of both the tribunal and EAT that Mrs Town was discriminated against.