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Discrimination: Removal of Dog from Pregnant Police Dog Handler

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Thanks to Ed McFarlane of Deminos HR for preparing this case summary

Was it a detriment for a police dog handler to have her dog removed from her when she was no longer operational due to pregnancy?

Yes, held the EAT (Langstaff P presiding) in Metropolitan Police v Keohane, the removal of the dog, called Nunki Pippin, which was apparently permanent, produced a risk of an impact on career progression and loss of overtime on the Claimant's return, and so was a detriment. The EAT noted, as was accepted, that the loss of a dog as a companion would give rise to an 'unjustified sense of grievance' which could not lead to a detriment.

Whilst the Police's need to keep a search dog operational might have been the major factor in the removal decision, that did not mean that the Claimant's pregnancy was not a cause of it. The 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 did not need to be caused solely, or even mainly, by a discriminatory motive, it was enough that pregnancy was a significant and material influence on the decision.

The EAT rejected a contention that the use of the words 'because of' in section 18 of the Equality Act 2010 required a 'narrow' or 'broad' approach to causation in detriment cases; causation was a finding 'robustly to be made', but it went on to say that if that was wrong, it would prefer a broad approach, citing the Equal Treatment Directive 2006/54/EC, which uses the term 'related to', broader than 'because of'.

The EAT overturned the employment tribunal's dismissal of an indirect sex discrimination complaint arising from the dog's removal, noting 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 indirect discrimination and the EAT put a stay on remission pending a decision on the Police's appeal on the direct discrimination point.