In the recent case of Commissioner of the City of London Police v. Geldart,the Court of Appeal held that non-payment of an allowance during maternity leave will not necessarily amount to direct sex discrimination under the Equality Act 2010.
Facts of the case
Ms Geldart was a female police officer based in London. In addition to her annual salary, she was entitled to a “London allowance” by virtue of the Police Regulations 2003(the Regulations). This allowance is separate to any London weighting and is intended to reflect the difficulty in recruiting and retaining police officers in London.
During her maternity leave, she received Police Occupational Maternity Pay (OMP) for 23 weeks. Thereafter she received a further 16 weeks of statutory maternity pay. She was on maternity leave for 41 weeks in total.
Ms Geldart only received the London allowance for the duration of the OMP. She argued that she should have received the allowance for the full duration of her maternity leave. She brought both direct and indirect discrimination claims against her employer. This article focuses on the direct discrimination aspect of her claim.
Under the Equality Act 2010, in order to successfully bring a claim for direct discrimination on the grounds of sex, a claimant must be able to demonstrate that they have been treated less favourably than others because of their sex.
The Employment Tribunal (ET) agreed with Ms Geldart and found that the reason she had not been paid the allowance was because she was on maternity leave and this amounted to direct sex discrimination. The tribunal relied on the principle established by the European Court of Justice decision in Webb v. EMO Air Cargo (UK) Ltd. This is essentially that discrimination on grounds of pregnancy or maternity leave is inherently sex discrimination and there is no need for a male comparator in such cases.
The Commissioner appealed to the Employment Appeal Tribunal (EAT) but the EAT dismissed the appeal. The Commissioner then appealed to the Court of Appeal.
The Court of Appeal decision
The Court then considered how this reason for non-payment should be characterised in law. The Court accepted the Commissioner’s position that the misinterpretation of the Regulations was an erroneous belief that an absent employee was not entitled to the allowance (the reason for the absence under this interpretation being immaterial). Under the Regulations, an employee is entitled to pay if they are “ready and willing to work”, subject to special provision for certain kinds of absence/unavailability. To that end, the reason why Ms Geldart was not paid the allowance (except for the duration of the OMP) was that she was unavailable for work. In other words, the Court of Appeal held that the reason for the non-payment of the allowance was not because Ms Geldart was on maternity leave, but rather because she was absent from duty. In these particular circumstances, the Court concluded that the failure to pay was not direct discrimination.
The appeal was successful. The Court of Appeal found that Ms Geldart was entitled to receive the London allowance throughout the period of her maternity absence under the Regulations. However, in this case the non-payment of the allowance did not amount to direct sex discrimination.
In reaching this decision, the Court of Appeal focused its attention on answering “what caused the treatment in question”. The Court was satisfied that the reason Ms Geldart did not receive the London allowance was because her employer wrongly understood it to be a form of pay governed by the principles applicable to “Pay” under Part 4 of the Regulations. In addition, under legislation, the right to pay is replaced during maternity leave by the right to maternity pay.
The separate indirect discrimination claim was remitted back to the ET for further consideration.
Conclusion
Whist this decision very much turns on the specific facts of the case, it should prompt employers to revisit their maternity pay policies to ensure they are up to date and clear as to how maternity pay is calculated. This is especially recommended if employees are in receipt of an allowance or benefit over and above their basic salary.
When drafting and implementing paid leave policies, employers should also be mindful of the potential discriminatory treatment and, if in doubt, seek legal advice.
