The Employment Appeal Tribunal (‘EAT’) has upheld a claim for sex discrimination after a female police officer was not paid a ‘London allowance’ whilst on maternity leave.
- The Law
Section 13 of the Equality Act (‘EA’) provides that direct discrimination occurs where, ‘A treats B less favourably than others because of a protected characteristic’ and in order to claim direct discrimination, a Claimant must show they have been treated less favourably than a real or hypothetical comparator.
An exception to this, under Section 18 EA, is pregnancy and maternity discrimination where a formal comparator is not required. The test is instead whether the individual has been treated unfavourably, rather than less favourably. This exception follows the case of Webb v EMO Air Cargo (UK) Ltd  where the European Court of Justice held that discrimination on the grounds of pregnancy was automatically discrimination on the grounds of sex and as pregnancy is only applicable to women, there is no need for a male comparator.
Under Part 6 of the Police Regulations 2003, serving police officers in London are entitled to a ‘London Allowance’, established to promote police officer recruitment in London. Mrs Geldart worked for the City of London Police and during her maternity leave, the allowance was paid at the same rates as the force’s maternity policy, providing full payment of the allowance for 13 weeks, half payment for 10 weeks and no payment for the remainder of the leave (whilst she was on statutory maternity pay).
Mrs Geldart argued that failure to pay this allowance in full during her maternity leave amounted to direct sex discrimination. The employment tribunal upheld her claim and her employer appealed.
The EAT dismissed the appeal and upheld the decision of the employment tribunal. They considered the Police Regulations and held that nothing within them stopped Mrs Geldart’s London Allowance from being payable during maternity leave, as she remained a member of the City of London police force during this time.
The EAT highlighted that the tribunal had correctly applied the principle from the case of Webb, that a Claimant who has been subjected to discrimination on the grounds of pregnancy and maternity, is a victim of sex discrimination and does not need to prove that a man would have been treated differently.
It further held that this principle still applies, despite section 18 EA providing specific provision for pregnancy and maternity discrimination, as this section was not intended to cover all circumstances where a woman could be discriminated on the grounds of pregnancy and maternity. Section 13 of the EA could thereafter be relied on.
- Implications for employers
The decision leaves open the possibility that for cases that fall outside the scope of section 18 EA, a Claimant can bring a claim of direct discrimination under section 13 EA, where they have been treated unfavourably because of pregnancy and maternity and it is not necessary to rely on a comparator.
Employers should ensure their maternity policies are up to date with the current legal position and that any allowances, not incurred when performing duties, are paid appropriately to employees on maternity leave to avoid any potential discrimination claims.