The recent Employment Tribunal case, Mrs N Town v The Chief Constable of Devon and Cornwall Police, has raised questions amongst employers on the effects of changing a person’s role when they are pregnant, ill or injured and how this might result in discrimination claims when decisions are not considered carefully or justified.
The background to the case:
Mrs N Town was a Police Constable in the response team at Devon and Cornwall Police when she informed her employer that she was pregnant. She confirmed she wanted to remain in her front line role but with reduced responsibilities.
Her employer carried out a risk assessment which clarified that she was fit to remain in her role and recommended adjustments such as wearing plain clothes, working fewer night shifts and undertaking lower-risk work such as interviewing witnesses.
However, after a meeting of the People Management Group a week later they decided that she should be moved to the Crime Management Hub. This was an office based department which dealt with low-level crime. She was 12 weeks’ pregnant at this point.
What happened in the case?
Mrs Town brought claims of discrimination on the grounds of pregnancy, and sex and indirect discrimination.
Her employer defended the claims on the basis that she was transferred not because of her pregnancy, but because of a combination of the claimant’s restrictions occasioned by her pregnancy and their own business needs. The respondent, Devon and Cornwall Police, stated that they regularly moved police officers who were restricted and it did so without any regard to the cause, whether it be illness, injury, pregnancy or some other reason. Therefore it was the restrictions that caused the move, not the pregnancy.
However, the respondent’s policy on risk assessment states that “total elimination is not necessary. Where an expectant mother wishes to continue with this type of work, the following control methods will reduce risk to a suitable level”.
The measures detailed in the policy mirrored those set out in the original risk assessment as set out above.
Was the respondent right or wrong to change her role?
This is an interesting case because most people would view front line duties for a pregnant woman to be “dangerous”. In fact, in reviewing comments made on various social media sites about this case, the main consensus seems to be that her employer was correct in removing her from front line duties.
It is clear that the Police have considered the issue of front line officers who are pregnant carefully and it is their view, as stated in their own policies, that an employee could potentially continue in such a role with various adjustments.
Therefore, in this case the Tribunal found, amongst other things, that the decision to transfer Mrs Town to the Hub was taken without any regard to the risk assessment previously carried out which stated she was fit to remain in her current role with certain adjustments and no explanation was provided as to why it had not been considered. They found that the Respondent’s assertion that working in the Response Team was potentially dangerous for a pregnant women contradicted their own policies as well as the result of the risk assessment.
There may have been a different result to this claim had her employer considered the risk assessment and their policy and set out clearly the justification as to why they felt that they could not comply with suggestions in these particular circumstances.
What can employers learn from this case on discrimination claims?
This case is a good reminder that when an employee is pregnant, there is an obligation on the employer to carry out a risk assessment and continue to assess risk throughout pregnancy. If that risk assessment suggests adjustments should be made to enable her to continue in her role, these should be considered and not dismissed out of hand and where such adjustments are found to be unreasonable or not viable, this should be documented clearly to ascertain why the results of a risk assessment were not considered.
For advice on discrimination claims or any other employment law matter, please contact Katie Hodson in our Employment Law & HR team on 0161 475 7670.