In the recent employment tribunal case of The Commissioner of Police for the Metropolis v Keohane, the facts were that a dog called Nunki Pippin was permanently removed from a police dog handler when she was no longer operational because of her pregnancy. She claimed that this decision was both directly and indirectly discriminatory. The Employment Appeal Tribunal (EAT) upheld the claims of direct and indirect discrimination. The judgment was handed down on 4 March 2014.
The EAT held that this decision produced an impact on career progression and loss of overtime on the claimant’s return and was therefore a detriment. Even although the motive behind the decision was to ensure that a search dog was kept operational, the EAT held that the claimant’s pregnancy had been a factor in the decision. The detriment did not need to be caused solely or mainly by a discriminatory motive and it was held that it was enough that the pregnancy was a major influence on the decision.
The EAT also noted that the policy of removing dogs without guaranteeing their return to handlers would have a differential impact on one gender as a whole and therefore would be indirectly discriminatory.
Employers should be careful when making decisions which are determined by an employee’s protected characteristic. If a significant factor in making a decision is because an employee holds a protected characteristic, employers may face a direct discrimination claim by that employee. Similarly employers may face an indirect discrimination claim (or claims) if a policy has a differential impact on employees who hold a specific protected characteristic compared to employees who do not hold such a characteristic. Such a policy would require to justified in order to avoid a finding of indirect discrimination.
If in doubt, the sensible approach would be to take legal advice at an early stage so as to avoid a potential claim under the Equality Act.Simon Allison Partner – Employment Law