A failure to pay an allowance due to a mistaken belief that the allowance constituted ‘pay’ and was therefore not payable during the latter part of a police constable’s maternity leave, did not amount to direct sex discrimination. It was the claimant’s unavailability for work that was the reason for non-payment and the fact that her absence would not have occurred ‘but for’ her maternity leave was not determinative of the issue, according to the Court of Appeal.
Commissioner of City of London Police v Geldart [2021] EWCA Civ 611
What are the practical implications of this decision?
This is an important judgment for practitioners dealing with direct discrimination claims, particularly those involving alleged discrimination because of maternity leave.
Underhill makes it clear that the issue of causation is not simply a question of whether the less favourable treatment would have occurred ‘but for’ the maternity leave. He adopts the same approach as Simler J (as she then was) in Tuleikyte that when considering whether the treatment was ‘because of’ the protected characteristic it is necessary to:
- first assess whether it was due to an inherently discriminatory criterion (a criterion case) and, if not
- then look at the ‘reasons why’ the respondent acted as it did (a motivation case)
He also draws a distinction between cases involving dismissals due to a woman’s absence due to maternity leave (e.g., Webb) compared to cases about entitlement to pay during maternity leave because he says:
- it is one thing to proscribe the dismissal, or other adverse treatment, of a woman for being absent as a result of pregnancy/maternity, but it is quite another to require that she be paid during a period of pregnancy/maternity absence
- domestic and EU legislation only requires payment of maternity pay on a prescribed basis and for a prescribed period because otherwise the woman would be entitled to nothing since she is not available for work
Applying these principles to the facts in this case, namely that the Commissioner did not pay the claimant London Allowance for the latter part of her maternity leave on the mistaken belief it was an element of pay to which she was not entitled after her Ordinary Maternity Period (OMP) had ended, Underhill LJ characterised the reason for non-payment as being her ‘absence’ rather than ‘maternity absence’. He said it was her unavailability for work that was the criterion which produced the non-payment. The fact that the absence in question happened because of maternity, and that on a ‘but for analysis’ the non-payment of the London Allowance would not have happened without it, was not determinative. Instead, he reasoned that:
- on the Commissioner’s understanding that London Allowance was a form of pay, the basic rule under the Police Regulations 2003 (the Regulations), as in most employment situations, is that pay is only due if the employee is ready and willing to work, subject to special provision for certain kinds of absence/unavailability
- the only difference that the claimant’s maternity made was that the Commissioner did, consistently with his misunderstanding that London Allowance fell to be treated as pay, pay it as part of the claimant’s maternity pay under the Regulations for the first eighteen weeks, or, to put it another way around
- her maternity was the reason why London Allowance was paid for that period, but it was not – which is what matters – the reason why it ceased to be paid thereafter
The claimant’s indirect sex discrimination claim has been remitted to the employment tribunal and now remains her only way of pursuing the claim as one of discrimination.
Case details
- Court: Court of Appeal
- Judges: Lord Justice Underhill (Vice-President of the Court of Appeal (Civil Division), Lord Justice Baker and Lord Justice Newey
- Date: 28 April 2021
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