Comr of the City of London Police v Geldart

UKEAT/32/19

Case details

Case citations
[2019] UKEAT 0032_19_2911 · [2020] ICR 920
Court
Employment Appeal Tribunal
Judgment date
29 November 2019
Judgment text

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Subjects
Employment law - Sex discrimination Maternity and parental leave - Allowances Statutory interpretation of Police Regulations
Keywords
London Allowance maternity leave direct sex discrimination Webb principle Equality Act 2010 Schedule 9 paragraph 17 Police Regulations 2003 deemed employment comparator not required
Outcome
appeal dismissed
Judicial consideration

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Summary

The decision confirms that a locally‑determined allowance payable by statute or subordinate instrument is payable during maternity leave unless the instrument expressly disapplies it.

Direct sex discrimination arising from pregnancy or maternity does not require proof of a male comparator where the unfavourable treatment is because the claimant was on maternity leave.

Where statute deems an office‑holder to be in employment for discrimination law, terms of service in statute or secondary legislation may be treated as a claimant's "contractual" terms for the purpose of exclusion provisions such as paragraph 17 of Schedule 9 to the Equality Act 2010.

Factual background

The appellant Commissioner appealed an Employment Tribunal finding that a police officer (the respondent) was entitled to the London Allowance throughout maternity leave and that its non‑payment amounted to direct sex discrimination. The officer received full pay, then half pay, then no pay during stages of maternity leave. The Employment Tribunal held the Police Regulations and their determinations entitled the officer to the allowance and found the non‑payment was because she was on maternity leave. The central questions were (1) whether the London Allowance fell to be paid during maternity leave under the Police Regulations and (2) whether that non‑payment was actionable under the discrimination provisions of the Equality Act 2010.

This appeal challenges the Tribunal's construction of the Police Regulations and certain demarcation and exclusion provisions of the Equality Act 2010, including paragraph 17 of Schedule 9 and section 76(1A). The respondent cross‑appealed on indirect discrimination, which the EAT did not need to decide.

Held

(1) The appeal is dismissed. The Employment Tribunal was right to conclude that, on their correct construction, the Police Regulations and the determinations made thereunder entitled the claimant to receive the London Allowance in full throughout her maternity leave. (2) The court explained that Part 4 of the Police Regulations governs "pay" and Part 6 governs "allowances", and that Annex U paragraph 3(a) plainly creates an entitlement to the London Allowance unless another provision disapplies it. (3) Regulation 36 (continuance of allowances when member ill) does not disapply the London Allowance because that allowance is not an "allowance to meet an expense which ceases during...absence from duty". There was no other provision which removed the entitlement during maternity leave. (4) The Employment Tribunal's factual finding that the claimant was not paid because she was on maternity leave was unchallenged and stands. (5) The Tribunal was correct that the claimant could maintain a direct sex discrimination claim without a male comparator by application of the principle in [1994] QB 718 (Webb). The Webb principle remains applicable under the Equality Act 2010. (6) Paragraph 17 of Schedule 9 does not exclude the claimant's claim. Section 42(1) of the Equality Act 2010 can be read to treat the claimant's terms of service in the Police Regulations as her contractual terms for the purpose of paragraph 17(4). (7) Section 76(1A) does not apply because the claimant did not complain of a discriminatory term of her work; she complained of failure to give effect to a term. (8) The cross‑appeal on indirect discrimination was unnecessary to decide given dismissal of the appeal. (9) No challenge to limitation or the award for injury to feelings succeeded. (Orders: appeal dismissed.)

Appellate history

  • Employment Appeal Tribunal Judgment delivered 29 November 2019: appeal dismissed.
  • Employment Tribunal (London Central) Decision sent to parties 6 November 2018: found claimant entitled to London Allowance during maternity leave and upheld direct sex discrimination claim (award for injury to feelings £4,000).

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