Devon and Cornwall Police recently failed in its appeal against an employment tribunal decision that found the act of transferring a police officer from a Response Team role to an office role after becoming pregnant was discriminatory, on the grounds of both her pregnancy and her sex.
The officer in question was transferred to an office based role in accordance with a blanket policy of the police force that stated that all employees on restricted duties should be transferred to an office based role. This was despite a risk assessment finding that she could safely remain in the Response Team if certain adjustments were made. The police argued that the rationale of the move was in order to remove the officer from danger and not the pregnancy itself, and that this criteria applied only to pregnant women and not women in general.
The Employment Appeal Tribunal (EAT) rejected this argument as the very act of transferring the officer against her will made her ill, and thus did not effectively remove her from danger. Furthermore, this only occurred because she was pregnant. The EAT also found that it was not necessary for the disadvantage to be faced by all women, but since women as a group were more likely to be subject to an enforced transfer then this satisfies the Provision, Criterion or Practice (PCP) necessary for indirect sex discrimination.
Whilst Devon and Cornwall Police could argue they made the transfer with the best of intentions, this case highlights how blanket policies when applied can be discriminatory. Indirect discrimination applies when a PCP is applied that ultimately disadvantages a certain group of people with protected characteristics, like sex or pregnancy or age without being able to justify the PCP as a proportionate means of achieving a legitimate aim. In this case, the practice was that of having a blanket policy which results in transferring pregnant women from their ordinary role to an office based role.
When implementing or applying a policy that may materially change the conditions of an employee’s employment, think about whether the policy is likely to affect one group of people over others, and if you are uncertain it would be advisable to seek legal advice on whether your policy could inadvertently be discriminatory, or would otherwise be deemed as justifiable.
If you have any questions or concerns, please contact one of the employment team.