City of London Police v Geldart

Under the Police Regulations 2003, an allowance which is separately provided for as a recruitment and retention allowance remains payable during maternity leave unless the Regulations or the relevant determination expressly provides otherwise. A restriction on maternity pay does not govern such an allowance.

For direct sex discrimination, the decisive question is why the payment was withheld. Where an employer applies a criterion of availability for work, even under a mistaken understanding of the applicable terms, maternity absence is not necessarily the legal cause of the treatment. The special rule treating pregnancy-related dismissal or refusal of employment as sex discrimination does not require payment beyond the applicable maternity-pay entitlement.

A City of London police constable received London Allowance for only the first 18 weeks of a 41-week maternity absence. The Commissioner treated the allowance as pay and therefore subject to the maternity-pay limits in the relevant determination. The Employment Tribunal held that the non-payment was direct sex discrimination and awarded £4,000 for injury to feelings. The Employment Appeal Tribunal dismissed the Commissioner’s appeal.

The Commissioner appealed. The constable cross-appealed to pursue an alternative claim of indirect sex discrimination. The central issues were whether London Allowance remained payable throughout maternity leave, whether its non-payment was direct sex discrimination, and whether the indirect discrimination claim was barred by section 71 of the Equality Act 2010.

1. Appeal allowed in part; cross-appeal allowed. London Allowance was payable throughout the claimant’s maternity leave. The scheme of the Police Regulations 2003 distinguishes pay under Part 4 from allowances under Part 6. Regulation 29 and Annex L limit entitlement to maternity pay, but do not limit London Allowance. Annex U conferred the allowance on a member of the City of London Police, and no express provision withdrew that entitlement during maternity leave. Regulation 36 did not apply because London Allowance was not an allowance to meet an expense which ceased during absence.
2. The direct discrimination claim nevertheless failed. Applying the causation analysis in Shamoon [2003] UKHL 11 and the Jewish Free School case [2009] UKSC 15, the relevant criterion was availability for work. The Commissioner’s mistaken treatment of London Allowance as ordinary pay meant that it was withheld after the period for which maternity pay was thought payable because the claimant was unavailable for work, not because she was a woman or was on maternity leave.
3. The pregnancy and maternity authorities culminating in Webb v EMO Air Cargo (UK) Ltd C-32/93 concern dismissal or other adverse treatment arising from pregnancy or maternity absence. They do not require full pay during maternity leave. The distinction is fundamental: maternity-pay legislation proceeds on the basis that a person absent from work would otherwise not be entitled to ordinary pay. Mere “but for” causation was insufficient. On the Commissioner’s understanding of the terms, a man unavailable for 23 weeks without an applicable express entitlement would likewise not have received the allowance.
4. Section 71 of the Equality Act 2010 did not preclude the indirect discrimination claim. The claim was not that the claimant’s terms themselves afforded inferior pay. It alleged failure to accord her the same terms, and so concerned detriment under section 39(2)(d), rather than discrimination as to terms under section 39(2)(a).
5. The court set aside the direct-discrimination award, including the award for injury to feelings. It remitted the indirect-discrimination claim, including the time objection, to the Employment Tribunal. Those issues required factual findings and discretionary evaluation which the appellate courts had not undertaken.

• Court of Appeal (Civil Division): Allowed the Commissioner’s appeal on grounds 2 and 3, dismissed the direct sex discrimination claim, and allowed the claimant’s cross-appeal. The indirect discrimination claim, including the time objection, was remitted to the Employment Tribunal.
• Employment Appeal Tribunal: Lavender J dismissed the Commissioner’s appeal on 29 November 2019. He did not determine the claimant’s cross-appeal on indirect discrimination.
• Employment Tribunal, London Central: By judgment sent on 6 November 2018, upheld the direct sex discrimination complaint, dismissed the other claims, and awarded £4,000 for injury to feelings.