In Commissioner of the City of London Police v Geldart, the Court of Appeal has held that a female police officer who was not paid the London allowance for the duration of her maternity leave did not suffer direct sex discrimination.

Background

The claimant was absent from duty on maternity leave for a total of 41 weeks. During that period, in accordance with her entitlements under the Police Regulations 2003 (“the Regulations”) (and any determinations made by the Home Secretary under powers conferred by those Regulations), she received the equivalent of 18 weeks’ occupational maternity pay.

As part of her remuneration, the claimant received London allowance. The London Allowance is a recruitment and retention payment (rather than an element of remuneration that reflects the demands of policing or the high costs of living in London) provided at paragraph 3 of Annex U (in a determination made under Regulation 34 (Part 6: Allowances and Expenses) of the Regulations) the relevant part of which states “A member of the City of London or Metropolitan police force shall be paid a London allowance at a rate determined by the Commissioner of the relevant force with regard to location and retention needs,…”

However, during her maternity leave, this allowance was only paid to her for 18 weeks, as the Commissioner treated her entitlement to receive the allowance on the same basis as her entitled to occupational maternity pay under Regulation 29, Part 4 (“Pay”) of the Regulations.

The claimant claimed that 1) she was entitled to receive the London allowance for the duration of her maternity leave, and, 2) the non-payment or partial payment of the allowance during her maternity leave amounted to unlawful direct sex discrimination under the Equality Act 2010.

The Employment Tribunal upheld the claimant’s claims and awarded her compensation of £4,000 for injury to feelings. The Commissioner’s appeal to the Employment Appeal Tribunal failed, and they appealed further to the Court of Appeal.

The Court of Appeal’s decision

The Court held that under the Police Regulations 2003, police officers who are entitled to the London Allowance are entitled to receive payment of it for the full duration of their maternity leave on the basis that:

• There is a clear distinction in the Regulations between Pay (subject to Part 4) and Allowances and Expenses (subject to Part 6).
• On a “natural reading” of the Regulations, Part 4 does not apply to the London Allowance as it is “treated as an entitlement of a fundamentally different character from “pay” under Part 4”.
• Under Part 3 of Annex U, the only condition that a police officer has to meet to be entitled to be paid the London Allowance was to be a member of the City of London (or Metropolitan) police force.

However, the Court upheld the Commissioner’s appeal against the finding that the non-payment of the allowance amounted to direct sex discrimination (and dismissed the claimant’s claim) on the basis that:

• The reason the claimant was not paid the London Allowance for the duration of her maternity leave was not because of her sex nor was it because of her maternity absence.
• The Commissioner had wrongly understood the London Allowance to be, for the purposes of the Regulations, a form of pay governed by the principles applicable to “Pay” under Part 4 and so had wrongly applied the basic rule under Part 4 of the Regulations to the London Allowance; that pay is only due when the individual is ready and willing to work (unless subject to special provision for certain kinds of absence/unavailability).
• The relevant criterion that produced the non-payment of the London Allowance was the claimant’s absence from work. The fact that the claimant’s absence happened to be because of maternity was only relevant to the question of why the London Allowance was paid to her for the first 18 weeks; it had no bearing at all upon why it ceased to be paid thereafter.
• Therefore, it followed that, the misunderstanding of the Regulations, the Commissioner would have applied the same misunderstanding to a man who was unavailable for work for 23 weeks (and not paid him the London Allowance for those weeks in circumstances not covered by an express provision in the Regulations).

What to take away

We would recommend that police forces review their practices on the entitlement to receive any allowances and benefits to ensure that they are consistent with the Regulations and this decision. The Court’s decision on the direct sex discrimination point is also a useful reminder that the simple “but for” test (i.e. but for the fact that the claimant was absent on maternity leave she would have received the allowance) is not always decisive. It is important to look at the all the circumstances in order to establish the reason for the treatment complained of (i.e. in this case, the reason for the non-payment was a misunderstanding/misapplication of the Regulations).

How Capsticks can help

Capsticks has significant experience of supporting Police forces to implement “family friendly” policies and to prevent discrimination (by drafting relevant policies and delivering training to employees at all levels) and also to deal with any complaints that may arise (by conducting investigations, supporting decision-makers and HR, and defending any employment tribunal claims).

For further information on how we might assist your organisation, please contact Paul McFarlane, Anna Semprini or Raj Chahal.