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

The Court of Appeal considered whether the Police (Injury Benefit) Regulations 2006 (in particular regulation 12) are part of an "occupational pension scheme" for the purposes of section 61 of the Equality Act 2010 and, in the alternative, whether an employment tribunal has jurisdiction under section 108 of the 2010 Act to determine complaints that the operation of regulation 12 gives rise to unlawful disability discrimination under sections 15 or 19.

The court held that regulation 12 is not an occupational pension scheme within the meaning of section 1 of the Pension Schemes Act 1993 because entitlement under regulation 12 is not triggered "on" retirement or "on" termination of service: cessation of service is a necessary but not a sufficient condition and is not the event giving rise to entitlement. The court therefore rejected jurisdiction under section 61.

However, the Court of Appeal allowed the appeal on the alternative ground that, subject to any other jurisdictional bar, the employment tribunal does have jurisdiction under section 108 of the Equality Act 2010 because the alleged discrimination arises out of and is closely connected to the former employment relationship and the conduct complained of would, if it occurred during the relationship, have contravened the Act.

As a result the court did not need to decide the appellants' EU law argument about whether the disablement gratuity was "pay".

Background and procedural history

• The appellants, former police officers, were denied a disablement gratuity under regulation 12 of the Police (Injury Benefit) Regulations 2006 because their total and permanent disablement did not arise within 12 months of the injury. They brought complaints in the employment tribunal alleging disability discrimination contrary to sections 15 or 19 of the Equality Act 2010.
• The employment tribunal held it had jurisdiction under section 61 of the 2010 Act, treating the 2006 Regulations as an occupational pension scheme, but not under section 108. The respondents appealed to the Employment Appeal Tribunal (EAT) which held the employment tribunal lacked jurisdiction: regulation 12 was not an occupational pension scheme and the gratuity was not "pay" for EU purposes; the EAT also dismissed the appellants' cross-appeal on section 108.
• The appellants obtained permission to appeal to the Court of Appeal and sought late permission to amend to advance a further ground that the EAT erred in its conclusion on section 108; the Court granted that permission and heard the argument on section 108 as well as on the statutory definition of "occupational pension scheme".

Issues framed

1. Whether regulation 12 of the 2006 Regulations falls within the statutory definition of an "occupational pension scheme" (Pension Schemes Act 1993 s.1) so as to engage section 61 of the Equality Act 2010.
2. Whether, alternatively, the employment tribunal has jurisdiction under section 108 of the Equality Act 2010 to determine complaints about denial of the regulation 12 gratuity.
3. Whether the disablement gratuity is "pay" for EU law purposes (only to be addressed if domestic law left a gap).

Reasoning and conclusions

• On the definition of occupational pension scheme: section 1(5) of the 1993 Act defines a pension scheme as arrangements providing benefits "on retirement", "on having reached a particular age" or "on termination of service". The court concluded that the triggering event must be the occurrence of one of those events. Regulation 12 requires three conditions (injury in execution of duty, cessation of service, and total and permanent disablement within 12 months). Cessation of service is a necessary but not the triggering event; entitlement may arise only when disablement occurs and that can be later than cessation. The words "having or capable of having effect" do not broaden the definition so as to capture regulation 12. Accordingly regulation 12 is not an occupational pension scheme under section 1 of the 1993 Act and section 61 does not give the employment tribunal jurisdiction.
• On section 108: the court interpreted section 108(1) as prohibiting discriminatory conduct after the end of a relationship where (a) the conduct arises out of and is closely connected to that former relationship, and (b) the conduct is of the description that would have contravened the Act had it occurred during the relationship. The court held that the applicants' complaint (the 12-month rule for disablement gratuities) does arise out of and is closely connected to their former relationships with their respective chief constables, and the conduct complained of is of a description that would, if it had occurred during employment, contravene the Act. Accordingly, subject to any other jurisdictional bars, the employment tribunal has jurisdiction under section 108.
• Because the Court accepted jurisdiction under section 108, it was unnecessary to decide the EU law "pay" point.

Practical outcome: the appeal was allowed on the section 108 point; the finding that regulation 12 is not an occupational pension scheme was affirmed. The Court stressed that having jurisdiction to hear the claims is not to determine their merits, which remain for the employment tribunal to decide.

Appeal allowed. The Court held (1) regulation 12 of the Police (Injury Benefit) Regulations 2006 is not an occupational pension scheme within the meaning of section 1 of the Pension Schemes Act 1993 and so the employment tribunal had no jurisdiction under section 61 of the Equality Act 2010; but (2) the employment tribunal does have jurisdiction under section 108 of the Equality Act 2010 because the alleged discrimination arises out of and is closely connected to the former employment relationship and the conduct complained of would, if it occurred during the relationship, have contravened the Act. The Court therefore allowed the appeal on the section 108 ground and did not decide the EU "pay" issue.

Employment Tribunal: Employment Judge Blackwell held the tribunal had jurisdiction under Equality Act 2010 s.61 but not s.108. Employment Appeal Tribunal ([2023] EAT 135): allowed respondents' appeal, held regulation 12 was not an occupational pension scheme and dismissed the cross-appeal on s.108. Court of Appeal ([2024] EWCA Civ 676): allowed the appellants' appeal on the section 108 ground and held the employment tribunal has jurisdiction under s.108; confirmed regulation 12 is not an occupational pension scheme.