The Equality Act provides that unfavourable treatment of pregnant women amounts to pregnancy discrimination. In Chief Constable of Devon and Cornwall Police v Town, the Employment Appeal Tribunal (EAT) held that to move a pregnant frontline police officer to a sedentary back office role amounted to both pregnancy discrimination and indirect sex discrimination.
Ms Town, a frontline response officer, notified her line manager Sergeant Roper on 21 November 2017, that she was pregnant. After conducting a risk assessment, he recommended that she remain within the response team, albeit on restricted duties, which she was pleased about.
A month later however, she was told that, as she had been on restricted duties for more than two weeks, she had to move to a sedentary back office role in the crime management hub in line with police policy. This not only contradicted the outcome of the risk assessment, but also was against Ms Town’s wishes. As a result of the move, she went off sick with anxiety and depression.
She brought claims for pregnancy discrimination under section 18 of the Equality Act 2010 and indirect sex discrimination under section 19 of the Act.
Section 18 states that it is pregnancy discrimination to treat someone unfavourably because of pregnancy during the protected period (which runs from when pregnancy begins until a woman’s return to work after maternity leave).
Section 19 states that it is indirect discrimination for an employer to apply a provision, criterion or practice (PCP) equally to everyone, but which puts those who share a protected characteristic at a particular disadvantage when compared with others who do not share the protected characteristic and the disadvantage cannot be justified. Although pregnancy is not a protected characteristic for the purposes of indirect discrimination, sex is.
Finding in her favour, the tribunal identified the unfavourable treatment as Ms Town’s transfer to the crime management hub. This put her at a disadvantage because it removed her from a working environment that she found particularly supportive against a background of an earlier miscarriage and moved her from work that she valued and enjoyed. It also put her at risk of injury to her mental health.
The tribunal rejected the argument that it was really an advantageous move because the work in the response team was potentially dangerous for pregnant women, not least because Sergeant Roper had found that Ms Town was fit to remain in the response team, subject to certain adjustments.
Identifying the PCP as the practice of moving officers to the crime hub after two weeks of restricted duties, the tribunal held that “pregnant officers, and therefore women, were at a particular disadvantage (in the form of susceptibility to an enforced transfer from an operational role to a non-operational role), when it came to the application of the PCP” and could not be justified.
The police appealed saying 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 which was not a relevant protected characteristic.
Dismissing the appeal on both grounds, the EAT held firstly that the treatment that Ms Town complained about was not that she had been removed from danger, but that she had been transferred from a frontline operational role to a back office role in the crime hub which she did not want and which made her ill. The tribunal had found as a fact that this treatment was unfavourable and that it was because she was pregnant.
For the purpose of section 19, the EAT held that, as only women can get pregnant and pregnancy is an automatic trigger for the application of the policy, it followed that women were disproportionately liable to be transferred. It was not necessary for all women to suffer from the particular disadvantage if women as a group were more likely to be subject to an enforced transfer because of the PCP.