No male comparator required for sex discrimination claim based on maternity pay


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The Employment Appeal Tribunal (EAT) has held in Commissioner of the City of London Police v Geldart that a woman claiming direct sex discrimination on the basis of her employer's refusal to pay a particular allowance during maternity leave does not have to show that a man would have been more favourably treated.

The claimant is a serving police officer.  She is entitled to a London allowance payable under the Police Regulations 2003.  She went on maternity leave and was paid full pay for 13 weeks, half pay for ten weeks and then only statutory maternity pay for the remainder of the leave.  The allowance was paid at the same rates during the claimant's maternity leave; namely in full for 13 weeks, in half for ten weeks, and then no allowance was payable until her return to work.  The claimant argued that the failure to pay her the allowance in full during her maternity leave amounted to direct sex discrimination.

At first instance the tribunal upheld the claimant's claim.  It found that, under the Regulations, she was entitled to be paid the allowance in full throughout her maternity leave as the provisions in the Regulations reducing entitlement to "pay" while on maternity leave did not apply to the allowance.  The failure to do this, as a result of the claimant's maternity leave, amounted to direct sex discrimination.  The police force appealed, arguing that the claimant was required to show that a man in comparable circumstances would have been treated more favourably.

The EAT dismissed the appeal.  It held that the tribunal had correctly applied the principle in Webb v EMO Cargo (UK) Ltd that a claimant who has been treated unfavourably on the ground of her pregnancy or maternity will have been directly discriminated against on grounds of sex, and does not need to prove that a man would have been treated differently.

Take note: As the claimant was treated as she was because she was on maternity leave there was no need for her to prove that a man would have been treated differently.  Although the claimant did not plead her case using the specific protection from discrimination on grounds of pregnancy and maternity provisions, it was possible for her to bring a claim for direct discrimination without having to establish the real or hypothetical comparator generally needed for such a claim to succeed.

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