Geldart v Commissioner of the City of London Police

The Court of Appeal decided that London Allowance is an allowance under Part 6 of the Police Regulations 2003 (Annex U) and on the true construction of the regulations the claimant constable was entitled to receive London Allowance for the entirety of her statutory maternity leave rather than only for the first eighteen weeks. However, the non-payment after the first eighteen weeks did not amount to direct sex discrimination under section 13 of the Equality Act 2010 because the respondent‘s reason for non-payment was the constable‘s absence from duty (as the respondent mistakenly treated the allowance as pay under Part 4) rather than treatment attributable to her sex or maternity as such. The Court allowed the Commissioner‘s appeal in part (on the concession and direct discrimination points), set aside the ET and EAT orders on direct discrimination, dismissed the direct discrimination claim and remitted the claimant‘s cross-appeal on indirect discrimination to the Employment Tribunal for reconsideration.

Background and facts:

• The claimant was a serving City of London constable who took 41 weeks‘ maternity leave and received Police Occupational Maternity Pay for eighteen weeks in accordance with Annex L (maternity pay determination) and statutory maternity pay thereafter. The claimant alleged that she was entitled to receive full London Allowance (an allowance provided by Annex U under regulation 34 and Part 6 of the Police Regulations 2003) for the whole period of her maternity leave, and that the Commissioner‘s partial payment (only for the first 18 weeks) amounted to unlawful discrimination under the Equality Act 2010.

Procedural history:

• The Employment Tribunal (London Central) found in favour of the claimant on direct sex discrimination (section 13 EA 2010) and awarded £4,000 for injury to feelings (judgment sent 6 November 2018). Lavender J in the Employment Appeal Tribunal dismissed the Commissioner‘s appeal (29 November 2019). Permission to appeal to the Court of Appeal was granted and the appeal was heard on 14–15 January 2021.

Nature of the claim and relief sought:

• The claimant sought the unpaid London Allowance for 23 weeks (total £1,941.60) and compensation for injury to feelings, proceeding under the Equality Act 2010 (initially pleading direct discrimination under sections 13 or 18 and later seeking to amend to raise an indirect discrimination case by cross-appeal).

Issues framed by the Court:

1. Contractual/terms-of-service issue: whether London Allowance falls to be treated as payable throughout maternity leave under Part 6/Annex U (the "contractual" claim).
2. Direct discrimination issue: whether the Commissioner‘s failure to pay constituted direct sex discrimination under section 13 EA 2010 (and related provisions such as section 23).
3. Concession/procedure issue: whether the Commissioner was disentitled from advancing the "reason why" defence because of an asserted concession in the ET and the EAT‘s refusal to permit amendment of grounds.
4. Indirect discrimination: the claimant‘s cross-appeal alleging indirect discrimination was reserved for further consideration if the Commissioner lost on the above issues.

Court‘s reasoning on the issues:

• On construction of the Police Regulations 2003 the Court agreed with the ET and EAT that London Allowance is an allowance under Part 6/Annex U with a distinct purpose (recruitment and retention) from pay under Part 4 (which is the subject of the maternity-pay determination at Annex L). Accordingly, the claimant was entitled to receive London Allowance throughout her maternity leave (ground 1 of the Commissioner‘s appeal dismissed).
• On direct discrimination, the Court focussed on the correct characterisation of the reason for non-payment. The respondent had (mistakenly) treated London Allowance as pay and withheld it after 18 weeks because the officer was absent from duty (absence being the operative criterion). That reason was not "because of" sex or maternity in the legal sense used in Webb and related cases (which concern dismissal or other adverse treatment because of pregnancy/maternity rather than limited payment of remuneration). The Court therefore held that the non-payment did not amount to direct sex discrimination under section 13 (ground 3 allowed as to direct discrimination).
• On the concession issue the Court found that the Employment Tribunal had misunderstood the Commissioner‘s pleaded position and that Lavender J should have allowed the Commissioner to challenge the ET‘s finding on the legal characterisation of the reason for non-payment; permission to amend in the EAT should have been granted (ground 2 allowed).
• The indirect discrimination claim raised by the claimant was not finally determined; the Court remitted it to the Employment Tribunal for reconsideration (including the time and chapter 3/section 71 points) because the ET and EAT had not decided these matters and they raise issues of fact and discretion.

Wider context and outcome:

• The Court emphasised the legal distinction between "pay" under Part 4 and "allowances" under Part 6 for the Police Regulations, and the limits of the Webb line of authority when applied to pay entitlements. The Court urged the parties to consider settlement given the limited sums in issue and the decided principle on payability of London Allowance during maternity leave.

Appeal allowed in part. The Court held: (1) on construction the claimant was entitled to London Allowance throughout her maternity leave because the allowance is governed by Part 6/Annex U of the Police Regulations 2003 and not by the maternity-pay provisions of Part 4/Annex L; (2) however, the Commissioner‘s non-payment after the first eighteen weeks did not amount to direct sex discrimination under section 13 Equality Act 2010 because the operative reason was the officer‘s absence (as the Commissioner mistakenly treated the allowance as pay), not discriminatory treatment because of sex or maternity; (3) the EAT should have allowed the Commissioner to challenge the ET‘s characterisation of the reason for non-payment; and (4) the claimant‘s indirect discrimination cross-appeal was remitted to the Employment Tribunal for further consideration. Rationale: statutory construction of the Police Regulations and the proper legal characterisation of the reason for the impugned treatment determined both entitlement and the discrimination issue.

Employment Tribunal (London Central) judgment (6 November 2018): found direct sex discrimination and awarded compensation for injury to feelings. Employment Appeal Tribunal (Lavender J) judgment (29 November 2019): dismissed the Commissioner‘s appeal. Permission to appeal to the Court of Appeal granted (Simler LJ, 4 March 2020) and the Court of Appeal ([2021] EWCA Civ 611) handed down judgment on 28 April 2021 allowing the appeal in part and remitting the indirect discrimination claim to the Employment Tribunal.