Comr of the City of London Police v Geldart

A police officer’s statutory entitlement to an allowance continues during maternity leave unless the Police Regulations 2003 or a determination made under them expressly provides otherwise. The distinction drawn by those Regulations between pay and allowances is material.

A direct sex-discrimination claim based on an employer’s failure to give effect to an existing entitlement is not excluded merely because the entitlement relates to pay. Section 76 and paragraph 17 of Schedule 9 to the Equality Act 2010 concern discriminatory terms and do not bar such a claim. Where the established reason for treatment is maternity leave, the Webb principle applies: the claimant need not prove that a man would have been treated differently.

The Commissioner appealed against an Employment Tribunal decision upholding a serving police officer’s claim for direct sex discrimination. During maternity leave, she received the London Allowance in full while on full pay, at half rate while on half pay, and not at all during the unpaid part of leave.

The Tribunal held that the Police Regulations 2003 and the determinations made under them entitled her to the allowance throughout maternity leave. It also held that the non-payment was direct sex discrimination and awarded £4,000 for injury to feelings.

The Commissioner contended that the allowance was not due, that the discrimination claim was excluded by section 76 or paragraph 17 of Schedule 9 to the Equality Act 2010, and that a comparator was required. The officer cross-appealed conditionally on indirect discrimination.

1. Appeal dismissed. Paragraph 3(a) of Annex U to the Police Regulations 2003 required payment of the London Allowance to a member of the City of London police force. The officer remained such a member during maternity leave. Her entitlement therefore continued unless displaced by another provision.

2. The Regulations deliberately distinguish pay, governed by Part 4, from allowances, governed by Part 6. Regulation 29 and Annex L governed maternity pay and did not remove entitlement to the London Allowance. Regulation 36 did not apply, because the allowance was paid for location and retention needs, not to meet an expense which ceased during absence from duty.

3. Section 76(1A) of the Equality Act 2010 did not apply. The complaint was not that a term of the officer’s work was discriminatory. Her terms entitled her to the allowance; the complaint was that the Commissioner failed to give effect to that entitlement because she was on maternity leave.

4. Paragraph 17 of Schedule 9 did not exclude the claim. In the context of section 42, the reference in paragraph 17(4) to a contract of employment includes a police officer’s statutory terms of service. Parliament had no apparent intention to deny a deemed employee protection against conduct that would be discriminatory if done by an actual employer.

5. The Tribunal was entitled to apply Webb v EMO Air Cargo (UK) Ltd, [1994] QB 718. Section 13(1) retained materially equivalent wording to the earlier legislation, and section 18 did not make exclusive provision for pregnancy- or maternity-related discrimination. Since the unchallenged basis below was that the officer was treated as she was because she was on maternity leave, she did not have to prove differential treatment of a man.

6. Permission to amend the appeal to challenge the Tribunal’s finding on the reason for treatment was refused. The conditional cross-appeal consequently did not arise.

• Employment Appeal Tribunal: The Commissioner’s appeal was dismissed. The conditional cross-appeal was not determined.
• Employment Tribunal, London Central: Upheld the direct sex-discrimination claim concerning non-payment or partial payment of the London Allowance during maternity leave and awarded £4,000 for injury to feelings. Its judgment was sent to the parties on 6 November 2018.