Discrimination: How strong should the causal link be between a detrimental act and a protected characteristic?

Discrimination: How strong should the causal link be between a detrimental act and a protected characteristic?

The Employment Appeals Tribunal (EAT) has recently considered the case of Metropolitan Police v Keohane in which it considered whether the removal of a police dog from its pregnant handler constituted discrimination.

The EAT held that the removal of the dog which was apparently permanent produced a risk of an impact on the Claimant’s career progression as well as loss of overtime on the her return and so was a detriment. As a result the removal of the dog was considered to have amounted to discrimination.

Whilst the Police’s requirement to keep a search dog operational might have been the major factor in the decision to remove the dog from the Claimant that did not mean that the Claimant’s pregnancy was not a cause of it even if a minor one. The Employment Tribunal’s findings of fact were that the Claimant’s pregnancy had been a factor in the decision rather than"merely the context within which the circumstances had arisen".

The detriment suffered by the Claimant did not need to be caused solely or even mainly by a discriminatory motive. It was considered to have been enough that the Claimant’s pregnancy had a significant and material influence on the decision.

This raises a question often considered in the context of direct discrimination. Namely does the wording “because of” used in section 18 Equality Act 2010 require a narrow or a broad approach when considering causation in discrimination claims and whether a detrimental act has taken place as a result of a protected characteristic?

The EAT rejected a contention that the use of the words “because of” required a narrow or broad approach to the question of causation. It was stated that causation was a finding “robustly to be made”. However the EAT went further and said that if it was wrong it would prefer a broad approach citing the Equal Treatment Directive 2006/54/EC which uses the term “related to” which is broader than “because of”.

The EAT finally considered the question of whether the removal of the police dog also amounted to indirect discrimination. The Employment Tribunal had previously decided that it did not. However this decision was overturned by the EAT and it was noted that the policy of removing dogs without guaranteeing their return to handlers would have a differential impact on one gender as a whole so it would be indirectly discriminatory although it may be open to justification.

The Claimant sought no extra monetary compensation for the finding in respect of indirect discrimination and the EAT put a stay on remission pending a decision on the Police’s appeal on the direct discrimination point.

It is clear from this case that a protected characteristic including race sex disability and pregnancy do not necessarily have to be the main reason for a decision to be made which has a detrimental effect on an employee. As long as a protected characteristic has some minor involvement in the decision making of an employer this could be sufficient to constitute discrimination.

If you have been discriminated against by your employer on the grounds of your pregnancy or maternity leave or for any other reason including your religion or belief race age or sexual orientation than you could have a claim for discrimination against your employer. Please contact the dedicated employment department at Michael Lewin Solicitors and we will be happy to discuss your situation with you.

Anthony Fox

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