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

An employment tribunal may have jurisdiction over discrimination concerning benefits payable after an employment relationship has ended. A disablement gratuity is not an occupational pension scheme merely because it is payable only after service ends. Under the Pension Schemes Act 1993, retirement or termination must trigger entitlement. Under section 108 of the Equality Act 2010, the reference to conduct which would contravene the Act during the former relationship identifies the kind of unlawful conduct; it does not require the conduct to have been capable of occurring during that relationship. A rule governing a former employee benefit may therefore fall within section 108 if it arises out of and is closely connected to the former employment. The jurisdictional ruling does not determine whether discrimination occurred or whether it was justified.

Former police officers alleged that the twelve-month requirement in regulation 12 of the Police (Injury Benefit) Regulations 2006 unlawfully discriminated against them because their total and permanent disablement occurred more than twelve months after their injuries.

The Employment Tribunal held that it had jurisdiction under section 61 of the Equality Act 2010, but not under section 108. The Employment Appeal Tribunal, in [2023] EAT 135, reversed the section 61 conclusion and dismissed the cross-appeal on section 108. The Court of Appeal permitted an amendment adding the section 108 ground. The central questions were whether regulation 12 was an occupational pension scheme and whether the alleged post-employment discrimination fell within section 108.

Lewis LJ gave the judgment, with Warby LJ and Underhill LJ agreeing. The Court allowed the appeal on ground 3.

1. Amendment. Applying the principles in Singh v Dass [2019] EWCA Civ 360, Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337 and Nesbit Law Group LLP v Acasta European Insurance Company Limited [2018] EWCA Civ 268, the Court granted permission to amend the appellants’ notice. The application was very late and insufficiently explained, but it raised a pure issue of law, involved undisputed facts, caused no prejudice, and had been fully argued. It was also artificial to decide the European Union law ground before resolving the domestic section 108 issue.
2. Occupational pension scheme. Section 1(5) of the Pension Schemes Act 1993 requires the relevant event to trigger entitlement to benefits. The word on means that retirement, reaching the specified age, or termination of service must be the event giving rise to entitlement. Regulation 12 requires three cumulative conditions. Cessation of service is necessary but not sufficient, need not be causally connected to the injury or disablement, and may precede total and permanent disablement. Regulation 12 therefore does not provide benefits on retirement or termination and is not an occupational pension scheme. Ground 1 failed.
3. Section 108. Section 108(1)(a) requires post-relationship discrimination to arise out of and be closely connected to the former relationship. The alleged discrimination concerned a statutory benefit available only to former police officers for injuries sustained in the execution of police duties, and satisfied that connection at the jurisdictional stage. Section 108(1)(b) identifies conduct of the kind which would contravene the Act during the relationship. It does not limit the section to conduct that could itself have occurred during the relationship. The application of the twelve-month rule was capable of constituting discrimination under sections 15 or 19 and concerned access to benefits or a detriment within section 39(2). Subject to any other jurisdictional bar, the tribunal therefore had jurisdiction.
4. Other issues. Rhys-Harper v Relaxion Group plc [2003] UKHL 33 involved differently worded legislation and did not establish the test for section 108. The Court did not determine whether the claimants would prove discrimination, whether the rule was justified, or whether any separate time-limit issue applied. It was unnecessary to decide whether the gratuity constituted pay under European Union law.

1. Court of Appeal (Civil Division). Allowed the appeal on the amended section 108 ground. Held that regulation 12 was not an occupational pension scheme, but that the Employment Tribunal had jurisdiction under section 108, subject to other jurisdictional bars.
2. Employment Appeal Tribunal. In [2023] EAT 135, allowed the respondents’ appeal on section 61 and dismissed the cross-appeal concerning section 108.
3. Employment Tribunal. Held that it had jurisdiction under section 61 but not under section 108.