Thu 24 Jun 2021

Police officer not discriminated against in relation to non-payment of allowance during maternity leave

A recent Court of Appeal case has considered whether a failure to pay an allowance to a police officer on maternity leave amounted to direct sex discrimination.  The basic legal principle is that during maternity leave all contractual benefits remain in force other than those relating to pay

In the case of Commissioner of the City of London Police v Geldart London Police (the force) failed to pay “G” her London allowance throughout her maternity leave due to their belief that the allowance constituted ‘pay’ for the purposes of the Police Regulations 2003 (the Regulations), entitlement to which is reduced during maternity leave.

When G went on maternity leave she was paid full pay for 13 weeks, half pay for 10 weeks and then statutory maternity pay (SMP) for the remainder of the leave. She was entitled to a London allowance but the force took the view that the allowance constituted ‘pay’ for the purposes of Part 4 of the Regulations and that G was entitled to receive it only to the same extent that she was entitled to maternity pay.  She therefore did not receive the allowance during the period of her leave when she was only entitled to SMP. G brought a claim under section 13 of the Equality Act 2010, arguing that the failure to pay her the allowance in full during her maternity leave amounted to direct sex discrimination.

An Employment Tribunal (ET) upheld G’s claim, finding that there was no provision for the allowance to be reduced during maternity leave. The ET held that the reason the force refused to pay the allowance was because G was on maternity leave, and that this amounted to direct sex discrimination. It applied the principle set down by the European Court of Justice in Webb v EMO Air Cargo (UK) Ltd namely that a claimant who has been treated unfavourably on the ground of her pregnancy or maternity leave has been the victim of sex discrimination and does not need to, and indeed cannot, prove that a man would have been treated differently. The Employment Appeal Tribunal dismissed the force’s appeal against that decision and the force appealed to the Court of Appeal.

The Court of Appeal allowed the force’s appeal against the finding of sex discrimination. The Court accepted that the reason why G was not paid the London Allowance throughout her maternity leave was that the force wrongly understood it to be a form of pay governed by Part 4 of the Police Regulations. The question for the Court to consider was therefore how that reason was to be characterised in law.

The Court of Appeal accepted the force’s argument that the reason for the non-payment should be characterised simply as ‘absence’ and that the reason for this absence was immaterial in the force's decision not to pay the allowance. The basic rule under the Police Regulations is that pay is only due if the employee is ready and able to work. Thus, the reason why G was not paid the allowance was simply that she was unavailable for work and did not relate specifically to the fact that this unavailability was due to her being on maternity leave.

G’s direct sex discrimination claim therefore failed as it was deemed that the treatment complained of was not because of her sex. This case should serve as a reminder to employers to ensure that paid leave policies are carefully drafted, particularly where employees are in receipt of allowances and benefits. The case also clarifies that claims for sex discrimination under section 13 of the Equality Act  do not require a male comparator where the issue relates to pregnancy or maternity, which is already the established principle for cases of maternity and pregnancy discrimination under section 18 of the Act.               

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