Comr of Police of the Metropolis v Keohane

Pregnancy discrimination and indirect sex discrimination are distinct claims, and the same events may support both. For direct pregnancy discrimination, the relevant question is whether pregnancy was a significant and material influence on the treatment. It need not be the sole or principal reason. A real risk of financial or career disadvantage may itself amount to a detriment; the disadvantage need not ultimately materialise.

For indirect discrimination, a policy may disadvantage a protected group even though its adverse effect occurs only in some cases. The individual claimant must show that she was actually disadvantaged. A policy producing a differential impact is indirectly discriminatory unless objectively justified.

The respondent, a police dog handler, was pregnant when the Metropolitan Police re-allocated one of her two narcotics dogs. The dog was not returned before she resumed operational duties after maternity leave. The Employment Tribunal found direct pregnancy discrimination under section 18 of the Equality Act 2010, because the decisions exposed her to a serious risk of lost overtime and career disadvantage. It rejected indirect sex discrimination, treating the risk of disadvantage as insufficient and considering that the policy did not inevitably produce re-allocation.

The Commissioner appealed against the direct discrimination findings. The claimant cross-appealed against the rejection of indirect discrimination. The central questions were causation, whether a real risk constituted a detriment, and whether the policy required further consideration of objective justification.

1. Direct discrimination. The appeal against the findings of direct pregnancy discrimination was dismissed. The Tribunal had been entitled to find that pregnancy was more than the background context. The evidence showed that pregnancy-related consequences led to the policy being invoked and materially influenced the decisions. A decision may have several reasons. The operational need to keep the dog deployed did not exclude pregnancy as a significant and material influence.
2. The Employment Appeal Tribunal declined to make “broad” or “narrow” causation a separate legal stage. Causation is a fact-sensitive finding to be made in the statutory context. If a choice had been necessary, the broader approach reflected the purposive interpretation of pregnancy discrimination in the Equality Act 2010 and the Equal Treatment Directive 2006/54/EC.
3. The detriment was not the loss of the dog as a companion. It was exposure to a real risk that, on returning to work, the claimant would lose overtime opportunities and suffer career disadvantage. The risk itself constituted a detriment, even though it might later be avoided or might last only temporarily.
4. Indirect discrimination. The cross-appeal was allowed. Direct pregnancy discrimination and indirect sex discrimination are legally distinct, so the same events may give rise to both claims. Pregnancy discrimination is not itself an indirect-discrimination protected characteristic; any indirect claim had to satisfy section 19 as a sex-discrimination claim.
5. A policy need not disadvantage every member of the protected group in order to have a discriminatory impact. A real risk of disadvantage can establish group disadvantage, provided the claimant was actually disadvantaged. The claimant met that requirement because her dog was re-allocated and was not returned. The issue of whether the policy was a proportionate means of achieving a legitimate aim remained unresolved.
6. The indirect-discrimination issue was remitted for consideration of justification. Remission was stayed for 35 days pending any decision to appeal. The Tribunal was required to consider whether retaining operational dogs justified the policy without a guarantee protecting a handler from disadvantage on return to work.

• Employment Tribunal, Watford: found direct pregnancy discrimination but rejected indirect sex discrimination in Reasons dated 17 July 2012.
• Employment Appeal Tribunal: dismissed the Commissioner’s appeal, allowed the claimant’s cross-appeal, and remitted justification for the indirect-discrimination claim.