It’s the 21st century and employment rights have come a long way in the last 30 years, but many employers still struggle to deal with the application of certain company policies for pregnant women and those on maternity leave. Even as a lawyer, who spends a fair amount of time dealing with questions and reviewing the legislation in this area, it does present a challenge to stay on top of this complex area of the law.
Whilst it is true that the law provides special protection for pregnant employees or those on maternity leave (and rightly so), some employers have a tendency of going too far, and treating staff as ‘untouchable’ during this period, or not going far enough to comply with the law. So does the case of PC Keohane help make things any clearer? Well in my opinion, no it doesn’t.
PC Keohane was a narcotics dog handler and her employers (the Metropolitan Police) had a policy on the re-allocation or withdrawal of police dogs where handlers were likely to be non-operational for a while. In particular, in dealing with cases of pregnancy or maternity leave (for health and safety reasons), the policy specified that female officers would in most cases not be permitted to continue in their role as operational dog handlers during their pregnancy. That seems sensible doesn’t it? The employers amongst you may well feel that this demonstrates best practice, to ensure PC Keohane was not exposed to any unnecessary risks during a protected period and also, to ensure that her dog, Nunki Pippin, was kept in active service.
So when PC Keohane told her employers about her pregnancy, little Nunki Pippin (for the record, I love this name) was taken away. However, PC Keohane believed the Police’s policy to remove Nunki was discriminatory on the grounds of her pregnancy and an Employment Tribunal agreed.
The decision was appealed and the Appeals Tribunal concluded that whilst the Police's need to keep Nunki in active service might have been the main factor in the removal decision, this did not mean that PC Keohane’s pregnancy was not a cause of it. The “detriment” suffered by PC Keohane did not have to be caused solely, or even mainly, by her pregnancy; it was enough if it was a significant and material influence in the Police’s decision. On that basis, there was held again to be discrimination.
It was commented that had the Police made a commitment to returning Nunki to PC Keohane at the end of her maternity leave this might have been sufficient to avoid the discriminatory treatment.
So what can we learn from this? Think very carefully about making any decisions in which pregnancy or maternity are a factor even when there does not appear to be any obvious unfair treatment or disadvantage. Focus in particular on any potential ‘detriment’ which may be suffered (whether actual or anticipated) upon a return to work. My advice, (though you might say I would say this wouldn’t I!) is to take legal advice well in advance of having to make any decisions on the subject matter.
Finally, if you can offer a temporary home for Nunki for 9 months …join the queue.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.