Chief Constable of Derbyshire Constabulary & Ors v N Clark & Anor

A benefit is payable on retirement or termination of service for the purposes of section 1(5) of the Pension Schemes Act 1993 only where that event crystallises entitlement. Termination which is merely a necessary condition, while a later and independent condition must also be met, does not suffice.

A disablement gratuity under regulation 12 of the Police Injury Benefit Regulations 2006 compensates work-related injury and disablement. It is not part of an occupational pension scheme for section 61 of the Equality Act 2010. Nor was it pay within the Framework Directive: it was not directly related to completed service and fell within the exclusion for state social protection schemes.

Two former police officers sustained work-related injuries and later became totally and permanently disabled. Each was refused the more valuable disablement gratuity under regulation 12 of the Police Injury Benefit Regulations 2006 because the disablement occurred more than 12 months after the injury.

They brought disability-discrimination claims in the Employment Tribunal. The Tribunal held that section 108 of the Equality Act 2010 did not confer jurisdiction, but that section 61 did because the gratuity formed part of an occupational pension scheme. The Chief Constables and the Secretary of State appealed that conclusion. The claimants cross-appealed on section 108 and Ms Clark also relied on EU-law principles.

The central issue was whether regulation 12 provided benefits on retirement or termination of service within section 1 of the Pension Schemes Act 1993, and whether EU law required a contrary result.

1. Appeal allowed and cross-appeal dismissed. The Employment Tribunal had no jurisdiction under section 61 of the Equality Act 2010 to determine the discrimination claims.

2. Section 1(5) of the Pension Schemes Act 1993 requires the relevant benefit to arise on the occurrence of retirement or termination of service. The statutory phrase does not merely require retirement or termination to be one preliminary condition for entitlement.

3. Regulation 12 of the Police Injury Benefit Regulations 2006 requires three conditions: a qualifying duty injury, cessation of police service, and total and permanent disablement within 12 months of the injury. Cessation is necessary but not sufficient. It may precede the medical determination of disablement and need have no causal connection with either the injury or the disablement. Entitlement therefore does not crystallise on retirement or termination.

4. The broader scheme and legislative history confirmed that construction. Regulation 12 is an injury-compensation benefit, deliberately separated from police pension benefits. The reasoning in City and County of Swansea v Johnson did not govern because the entitlement there crystallised on cessation of employment caused by incapacity.

5. The claimants had no directly enforceable EU-law right requiring a conforming construction. Although the gratuity concerned a defined group and was calculated partly by reference to final salary, it was not directly related to service completed. It was compensation for duty injury and disablement, rather than consideration for work. It was consequently not pay for article 157 of the Treaty on the Functioning of the EU or article 3 of the Framework Directive, and fell within the article 3(3) exclusion for state social protection schemes.

6. The claimants accepted that the Tribunal had made no error under section 108 of the Equality Act 2010. The refusal arose from the relationship under the injury-benefit regime, not from the former employment relationship. The cross-appeal was dismissed.

• Employment Appeal Tribunal: Allowed the respondents’ appeal and dismissed the claimants’ cross-appeal: [2023] EAT 135.
• Employment Tribunal (Midlands (East)): Held that section 108 of the Equality Act 2010 did not confer jurisdiction, but that section 61 did. That section 61 ruling was reversed.