Although it is direct discrimination to treat a woman less favourably because of her sex, the Court of Appeal held in Commissioner of the City of London Police v Geldart that it was not discriminatory for the commissioner to have failed to pay her an allowance for the whole of her maternity leave. This was because the non-payment stemmed from her absence from work, not because she was on maternity leave.
Basic facts
Ms Geldart, a serving police officer, was employed on terms and conditions set out in the Police Regulations 2003. She received a London allowance which was paid in order to recruit and retain officers in addition to London weighting. The allowance fell within the part of the regulations on allowances and expenses and was therefore separate from the provisions on pay.
When she went on maternity leave, Ms Geldart was entitled under regulation 29 of the Police Regulations to receive Occupational Maternity Pay (OMP) for 18 weeks, after which she received a further 16 weeks of statutory maternity pay.
The Commissioner for Police treated the London allowance as pay and so included it in her OMP. Ms Geldart claimed that she was entitled to receive it in full during her absence on maternity leave and claimed 23 weeks’ unpaid allowance. She also argued that the failure to pay it amounted to direct as well as indirect discrimination under the Equality Act 2010. Ms Geldart was unable to pursue a claim for pregnancy and maternity discrimination under section 18 of the Equality Act because as a police officer she was not entitled to statutory maternity leave.
Decisions of tribunal and EAT
The tribunal held that the London allowance was not “pay” for the purpose of the regulations, but rather was a separate allowance. As such Ms Geldart was entitled to it for the duration of her maternity leave.
It also upheld her claim for direct discrimination relying on the principle established by case law including Webb v Emo Air Cargo (UK) Ltd that discrimination based on pregnancy or maternity is inherently sex discrimination. It found that she had not received the London allowance because she was on maternity leave and therefore had been treated less favourably because of sex. As her claim for direct sex discrimination succeeded, the tribunal did not consider her claim for indirect discrimination.
The Commissioner of Police appealed, arguing that Ms Geldart was required to show that a man in comparable circumstances would have been treated more favourably and that the reason she had not received the allowance was because she was absent from work, not because she was on maternity leave. Ms Geldart cross appealed in relation to her claim for indirect discrimination.
Agreeing with the tribunal, the EAT (weekly LELR 657) held that Ms Geldart was entitled to the London allowance under the Police Regulations throughout her maternity leave. As the reason she had not been paid the allowance was because she was on maternity leave, she had been subject to direct sex discrimination. There was therefore no need to consider her cross appeal.
The Commissioner of Police appealed that decision on two grounds. Firstly, he argued that the EAT was wrong to decide that Ms Geldart was entitled to the London allowance under the Police Regulations; and secondly that the failure to pay the allowance amounted to direct sex discrimination.
Decision of Court of Appeal
The Court of Appeal dismissed the first ground of appeal holding that the tribunal and the EAT had correctly found that Ms Geldart was entitled to the London allowance. In particular, unlike entitlement to pay which was suspended during periods of absence from work, the only condition that applied under the Police Regulations as to whether the London allowance was payable was that she was an officer. As a result, she was entitled to be paid the allowance for the whole of her maternity leave.
However, it allowed the Commissioner’s appeal in relation to direct sex discrimination. In particular, the Court held that the reason why Ms Geldart was not paid the allowance was not because of sex (or because of maternity leave) but because the Commissioner had wrongly believed that the allowance was a form of pay under the Police Regulations and was therefore not applicable to any period of absence from duty.
The real issue was how that reason was to be characterised in law. As the reason for the non-payment, as opposed to the reason for her absence, had nothing to do with maternity leave but rather because Ms Geldart had been absent from work, it could not constitute sex discrimination. The fact that the Commissioner was mistaken in treating the London allowance as pay did not affect the analysis of the reason why he did not pay it beyond the first 18 weeks. It followed that Ms Geldart had not been treated less favourably, given that the allowance would not have been paid to a man who was unavailable for work for 23 weeks.
Comment
The Court held that the judgment in Webb was not relevant to the facts of this case which was concerned with payment during a period of maternity leave. Nor was it enough to establish a claim of direct discrimination to argue that “but for” her absence on maternity leave Ms Geldart would have received the allowance.
However, it did not rule out that the principles in Webb could be applied to a claim of direct discrimination where a woman is unable to rely on the protection from pregnancy/maternity discrimination in section 18 of the Equality Act 2010. For example, this could be because the discrimination took place outside the protected period which runs from when pregnancy begins until the end of the woman’s maternity leave or when she returns to work.