Non payment of allowance during maternity leave was not sex discrimination
The Court of Appeal has held in Commissioner of the City of London Police v Geldart that a female police officer who was not paid a particular allowance during maternity leave did not suffer direct sex discrimination.
The reason for the failure to pay the allowance was the force's mistaken belief that it constituted "pay" for the purposes of Part 4 of the Police Regulations 2003, entitlement to which is reduced during maternity leave.
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 occupational maternity pay for 18 weeks and then only statutory maternity pay for the remainder of the leave. The allowance was paid for 18 weeks. 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.
The Court of Appeal disagreed. It accepted that the reason why the claimant was not paid the London Allowance throughout her maternity leave was that the force wrongly understood it to be a form of pay governing by Part 4 of the Police Regulations. The key question to ask was how that reason was to be characterised. On the force's mistaken understanding that the allowance was a form of pay, the claimant was not paid it after a certain period during her maternity leave because she was absent from, and not available for work. Her absence happened to be because of maternity, which meant that her sex was part of the cause of non-payment, but this was not determinative. The only difference that the claimant's maternity made was that the force paid the allowance, consistently with the misunderstanding that it was a form of "pay", with her occupational maternity pay. It followed that the claimant's maternity was the reason that she received the allowance, but not the reason why the allowance then ceased to be paid.
As the reason for non-payment was "absence" the principle in Webb did not apply and the claimant's claim for direct sex discrimination failed simply on the basis that the treatment complained of was not on the ground of sex.
Take note: The Court of Appeal found that the claimant was treated as she was because she was on leave, and not because she was on maternity leave. However, it accepted that if maternity absence had been the reason for her treatment then, even though she did not plead her case using the specific protection from discrimination on grounds of pregnancy and maternity provisions, it would have been 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.