In situations where an employee notifies the organisation that they are pregnant, a risk assessment may deem it necessary to temporarily alter their usual duties or role in order to keep them safe during their pregnancy. This needs to be approached carefully by organisations in order to avoid claims of discrimination.
Section 18 of the Equality Act 2010 outlines that a person discriminates against a woman if they treat her unfavourably because of her pregnancy. Section 19 dictates that indirect discrimination occurs when a provision, criterion or practice (PCP) is applied that places a group at a disadvantage on the basis of their protected characteristic. Whilst employees cannot be indirectly discriminated against on the basis of being pregnant, they can be 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 outlines that tribunals should establish the relevant treatment, and then determine if it was unfavourable to the claimant in question.
An employee of Devon and Cornwall Police, was moved from her position on the Response Team 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 in the absence of ‘exceptional circumstances’.
Although the employee had outlined adjustments to her working day that could have allowed her to remain on the Response Team, such as 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 despite being told that this was regularly done to employees on ‘restricted duties’ and took time off work for stress and anxiety. She later brought two claims to the employment tribunal (ET), arguing that she had suffered pregnancy discrimination and indirect discrimination on the basis of her sex, contrary to sections 18 and 19 of the Equality Act 2010 respectively.
The tribunal upheld both claims.
The Judge ruled that although her pregnancy was not the main reason for the change in her role, the employee had received unfavourable treatment on the grounds of it. Despite the Police’s argument that all decisions made were due to ‘business need’, this did not escape the fact that 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 and that it had failed to outline the ‘exceptional circumstances’ that would avoid employees being placed in the Hub; despite the fact that concerns had been raised when the policy was first introduced in 2016.
Although the organisation did not contest that the employee’s treatment was due to her pregnancy, 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 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 and 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, but being transferred to the Hub without consideration of alternative solutions, which had placed her at a disadvantage. As this 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 the particular disadvantage if women as a group were more likely to be subject to an enforced transfer because of the PCP.
This judgement reminds organisations that pregnant employees have the right not to be unfairly treated as a result of their condition. Where a risk to a pregnant employee has been identified that cannot be avoided, organisations should consider making adjustments to her working conditions or hours of work. Potential adjustments will depend upon what is reasonable in the circumstances.