Discrimination in the workplace – Do you know what it is?

Advice  |   18 March 2014

The recent case of Met Police v Kehane is instructive as to how an apparently innocuous act can amount to discrimination in the workplace.

The recent case of Met Police v Kehane is instructive as to how an apparently innocuous act can amount to discrimination in the workplace. A female police dog handler became pregnant and when she was no longer ‘operational’ because of her pregnancy the police removed her dog (called ‘Nunki Pippin’) from her. A reasonable employer may think that act was understandable – the WPC was no longer operational and therefore the dog could legitimately be removed from Ms Kehane.

Ms Kehane took the view that the removal was definitely not reasonable. She brought a number of claims including a sex discrimination claim.

The case ended up at the Employment Appeal Tribunal (EAT) and she won! The EAT found the removal of the dog amounted to indirect sex discrimination, noting that the policy of removing dogs without guaranteeing their return to handlers would have a differential impact on one gender as a whole, thus leading to a finding of indirect discrimination. The EAT said that it would be indirectly discriminatory, although it may be open to justification (I’ll return to this later).

The moral of the story for an employer is to be aware that discrimination issues can be lurking in every corner of the employment world.

Discrimination at work takes broadly two forms – direct and indirect discrimination. The former is more easy to spot – A dismisses B because B is pregnant; or B fails to win a promotion because he is suffering from a disability or because of his age.

Indirect discrimination is more subtle and the above case provides a good illustration. Acts which on their face are not directly aimed at anyone in particular but could be discriminatory if they adversely affect a group of the population protected under the Equality Act.

It is therefore not always possible to spot an issue that is discriminatory. If a member of staff complains about an act or a decision of the employer it is always good advice to think outside the issue itself and consider whether a wider issue of discrimination has taken place.

Discrimination claims can be expensive – there is no cap on compensation at the employment tribunal. The highest award for discrimination in the 20011/12 year was over £4 million (it was a claim of race discrimination). You do not want to have to try to argue before the Tribunal that whilst the act was discriminatory, it was justifiable in some way. Justification is a defence to a claim of indirect discrimination but judged objectively; what one employer may think is justifiable an employment tribunal may think differently.

If an issue of discrimination arises you should always take advice from an objective and specialist outsider.

For further information please contact David Hacker.