PC Keohane was a dog handler, handling two “narcotics” dogs. Her status as a dual narcotics dog handler was important in that it enhanced her career prospects and gave her an opportunity to earn overtime. The Metropolitan Police operated a policy on the re- allocation or withdrawal of police dogs where handlers were likely to be non-operational for a while. For pregnancy or maternity leave, it specified that female officers would in most cases not be permitted to continue as operational dog handlers during their pregnancy, for health and safety reasons.
When PC Keohane told the Metropolitan Police that she was pregnant, a decision was taken to re-allocate Nunki Pippin, her "passive" search dog, leaving her with a pro-active search dog.
The Employment Tribunal found that the reason for the removal, and subsequently a failure to re-allocate the dog to her before the end of her maternity leave, was her pregnancy and maternity, and hence was directly discriminatory.
On appeal, the EAT started by noting that it was accepted that the loss of the dog as a companion could not be said to be a detriment! The detriment was putting the claimant at real risk that on her return to work she would have no second dog, with knock on effects on her career prospects and overtime opportunities.
The EAT discussed the fact that the discrimination wording changed at the time of the Equality Act. Instead of the alleged discrimination being "on the grounds of" the protected characteristic (in this case, pregnancy or maternity), the requirement is now that is it "because of" it. (Keohane is the first discrimination case to discuss this in any detail.) The Government said at the time that it was not intended to change the law but the Police argued that the wording has a narrow meaning: it had to be established that the alleged discriminator was motivated by the fact of pregnancy or maternity, or there was a direct causal connection between the pregnancy and the decision, as opposed to it merely being the context within which the circumstances had arisen.
The EAT concluded that, even on this narrow test, there had been discrimination, although it went on to say it favoured a broader approach: the detriment does not have to be caused solely, or even mainly, by the discriminatory act; it is enough if it was a significant and material influence. The point was that the conditions she faced on return to work would be worse than before, as a consequence of taking leave. And it was subjecting the claimant to that risk, not whether it actually materialised on return to work, that gave rise to the detriment. Having said that, the EAT also commented that had the employer made a commitment to returning the dog to the claimant at the end of her maternity leave, that might have been sufficient. In practice, such a commitment may well have made a claim less likely.