Is it discrimination to move a pregnant employee to another role, even if done with good intentions?
Pregnant employees have certain protected rights namely paid time off for antenatal care, maternity leave, maternity pay or maternity allowance and protection against unfair treatment, discrimination, or dismissal.
Health and Safety
When an employee makes her employer aware of her pregnancy, the employer is required to assess any workplace risks that could impact on the employee and her baby, these potential risks could be heavy lifting, standing, or sitting for long periods without adequate breaks, exposure to toxic substances, long working hours etc and where a risk assessment identifies hazards, the employer should take reasonable steps to remove them. For example, offering the employee light duties in her existing role, changing her hours of work, or offering different work.
The employer would have an obligation to suspend the employee on full pay if they cannot remove any hazards in the current role and cannot offer any other suitable alternative work.
Employment Tribunal
In the case of Chief Constable of Devon and Cornwall Police v Town 2019, Mrs Town(T) was a front-line police officer and following an announcement of her pregnancy, the employer carried out a risk assessment with an outcome that (T) could safely remain within her existing response team unit with adjustments i.e. assigned restricted front-line duties. (T) was happy with that outcome.
The employer had a policy that all employees placed on restricted duties for any reason would be placed on its Crime Management Hub involving back-office duties and risk assessment would be ignored. (T) objected to being placed there and the move impacted on her health resulting in depression. (T) brought successful employment tribunal claims on pregnancy and indirect sex discrimination under sections 18 and 19 Equality Act 2010.
Employer appealed to Employment Appeal Tribunal on the basis that it could not be unfavourable treatment to remove (T) from the hazard of being a front line officer while pregnant ,but the appeal was dismissed as (EAT) found the employer had not adequately addressed (T)’s complaint namely that the move unnecessarily took her away from a supportive team, doing work she enjoyed to a different role that put her at risk of injury to her mental health thus this was unfavourable treatment and it was her pregnancy that gave rise to the unfair treatment under section 18.
Indirect Discrimination
With indirect discrimination, it was not necessary that all women suffered from the particular disadvantage. If women were more likely to be subject to an enforced transfer because of the criteria applied, it only required that a worker who falls within the protected group to establish that they are more likely to be disadvantaged than the comparator group. Given the fact that women workers becoming pregnant would result them being placed on restricted duties as per the policy then women were clearly disproportionately likely to be transferred.
It was irrelevant that some women would regard being transferred as an advantage as the point was that women were more likely to be susceptible to an enforced transfer than men in circumstances where the policy was not justified.
The above case is a timely reminder that good intentions of the employer would not be a defence to a pregnancy/ maternity discrimination claim.
This news article is intended for general information purposes only and should you require any further guidance and assistance on matter to contact our HR/Legal advice-line team on 01455 852028.
