Louise Chudleigh represented the Commissioner at each stage of proceedings.
The Court of Appeal handed down judgment in the case of Commissioner of the City of London Police v Claire Geldart on 28 April 2021. The court held that the police’s failure to pay an element of remuneration called ‘London Allowance’ for the duration of the Claimant’s maternity leave, on the mistaken basis that it constituted an element of pay, did not amount to direct sex discrimination.
Background
The Claimant is a police constable. Her terms of service are prescribed by Regulations, including the Police Regulations 2003 and ‘determinations’ made thereunder by the Home Secretary (the ‘Regulations’). Part of her remuneration was a ‘London Allowance’, which appears in the Regulations under Part 6, ‘Allowances and Expenses’, as distinct from Part 4, ‘Pay’. The purpose of the London Allowance is recruitment and retention.
The Commissioner categorised the London Allowance as an element of pay. Accordingly, when the Claimant took maternity leave, she received the London Allowance with her enhanced maternity pay but when she moved to statutory maternity pay it was no longer paid.
The Claimant claimed that on a proper construction of the Regulations she was entitled to receive the London Allowance for the duration of her maternity leave. She further claimed that failure pay her London Allowance constituted direct sex discrimination contrary to s. 13(1) Equality Act 2010.
The Claimant also claimed indirect discrimination contrary s. 19 Equality Act 2010, and pregnancy and maternity discrimination contrary to s. 18 Equality Act 2010.
The pregnancy and maternity discrimination claim was withdrawn at an early stage as under s. 18 of the Equality Act 2010, the Claimant who was an office holder, was only entitled to protection during her compulsory maternity leave, during which time she had received London Allowance.
Previous decisions
The Employment Tribunal held that on a proper construction of the Regulations, having regard to the nature and purpose of the London Allowance, it did not constitute pay. Accordingly, in the absence of an express provision to the contrary, the Claimant was entitled to the London Allowance throughout her maternity leave.
The Tribunal further held that the failure to pay London Allowance throughout maternity leave constituted direct sex discrimination, relying on the line of authorities culminating in Webb v EMO Air Cargo (UK) Ltd, C-32/93, [1994] QB 718 which establish that the dismissal of a worker, or refusal of employment, because of current or anticipated pregnancy or maternity absence is to be treated as discrimination on the ground of sex, without the need for the identification of a male comparator in materially the same circumstances.
The Tribunal held that the Claimant was treated as she was because she was on maternity leave, therefore following Webb, it was inescapable that the treatment was ‘because of’ sex.
The indirect discrimination claim was dismissed as the Claimant had succeeded in the claim for direct discrimination.
The EAT dismissed the Commissioner’s appeal and the Claimant’s cross-appeal on indirect discrimination.
Court of Appeal
The Court of Appeal allowed the Commissioner’s appeal in part; it dismissed the direct sex discrimination claim.
Lord Justice Underhill, delivering the unanimous judgment of the court, maintained the Employment Tribunal’s finding that the Commissioner had misinterpreted the Regulations by categorising London Allowance as pay.
However, the Court of Appeal held that the Employment Tribunal erred in its finding of direct discrimination. The correct approach was to focus on the reason why the Claimant was treated as she was (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; R (E) v Governing Body of JFS [2009] UKSC 15) (¶58).
The reason why the Claimant had not been paid the London Allowance throughout her maternity leave was because it was wrongly categorised as a form of pay, but the real issue was how that should be characterised in law (¶59-60).
It was argued for the Claimant that the reason should be characterised as ‘maternity absence’ and as such, following Webb, necessarily ‘because of sex’ (¶60).
The Court of Appeal preferred the characterisation of the Commissioner, that the ‘reason why’ was simply ‘absence’ from work, the particular reason for the absence being immaterial. On the Commissioner’s understanding, the London Allowance was a form of pay, and pay under the Regulations is only due if an employee is ready and willing to work. The Claimant’s unavailability for work was the ‘criterion’ which produced the non-payment. The absence in question happened to be because of maternity, and to that extent the Claimant’s sex was part of the cause of the non-payment, but ‘but for’ causation of that kind is not determinative (¶61).
The Court of Appeal distinguished the Webb line of authorities on the basis that they concern dismissal and not pay, which it called ‘a fundamental distinction’. Maternity pay is prescribed in the scheme of both domestic and EU legislation. Women are not required to receive full pay during maternity leave, and ‘[i]t is plainly not sex discrimination not to pay a female employee who is absent on maternity leave more than the amount of maternity pay which she is entitled during the prescribed period, nor, if she remains absent beyond that period, not to pay her at all’ (¶62).
The fact that the Commissioner was mistaken to treat the London Allowance as pay did not affect the analysis of the ‘reason why’. The focus must be on the criterion that was applied, rightly or wrongly (¶64).
Indirect discrimination
The Claimant cross-appealed the Tribunal and EAT’s dismissal of the indirect discrimination claim. The Court of Appeal considered whether s. 71 Equality Act 2010 precluded the indirect discrimination claim and held that it does not apply to this case (¶90). The indirect discrimination claim was remitted to the Employment Tribunal.
This case summary was written by Emily Skinner.
