Devon and Cornwall Police v Town (SEX DISCRIMINATION)

A tribunal must identify the actual treatment of which a claimant complains when deciding whether conduct is unfavourable under section 18(2) of the Equality Act 2010. A finding that an unwanted transfer was unfavourable is a finding of fact. It cannot be displaced on appeal merely by characterising the transfer as removal from danger.

For indirect sex discrimination under section 19, a particular disadvantage need not affect every woman. It is sufficient that women as a group are more likely than men to be disadvantaged by the provision, criterion or practice. A policy triggered automatically by pregnancy may therefore place women at a particular disadvantage, even though illness can also trigger it.

The claimant was a frontline police Response Officer. After notifying her employer that she was pregnant, a risk assessment concluded that she could remain in that role on restricted duties. Senior management nevertheless transferred her, under a practice concerning officers on restricted duties, to the Crime Management Hub.

The Employment Tribunal held that the transfer was unfavourable treatment because of pregnancy, contrary to section 18 of the Equality Act 2010, and that the practice indirectly discriminated on grounds of sex under section 19. The employer appealed, contending that the relevant treatment was the beneficial removal of risk and that the alleged group disadvantage was confined to pregnant women rather than women generally.

1. Appeal dismissed. The Employment Tribunal was entitled to identify the relevant treatment under section 18(2) of the Equality Act 2010 as the claimant’s transfer from the Response Team to the Crime Management Hub. That was the treatment pleaded and complained of. The employer’s proposed characterisation, namely removal from the dangers of frontline work, did not answer that complaint.

   Following the approach in Williams, the questions were what the relevant treatment was and whether it was unfavourable. The latter was a factual question. The Tribunal had found that the unwanted transfer removed the claimant from supportive colleagues and valued frontline work, and exposed her to a risk of mental-health injury which materialised. That finding was not challenged as perverse. The fact that the employer could lawfully direct a police officer to undertake the work did not prevent the direction amounting to discrimination.

2. The indirect-discrimination ground also failed. Section 19 requires a comparison between women and men; it does not require every woman to suffer the particular disadvantage. Applying Essop, it was enough that women were more likely to be disadvantaged than the comparative group.

   Pregnancy was an automatic trigger for the restricted-duties practice, whereas only women can become pregnant. The Tribunal was therefore entitled to find that women were disproportionately susceptible to an enforced transfer from operational to non-operational work. An enforced transfer could itself amount to a disadvantage, and the Tribunal had additionally found that such a transfer was objectively capable of being viewed as a retrograde career step. No challenge was pursued to the Tribunal’s finding that the practice was unjustified.

• Employment Appeal Tribunal: dismissed the employer’s appeal from the Employment Tribunal’s judgment of 18 February 2019, which upheld claims under sections 18 and 19 of the Equality Act 2010.