Female police officer did not require male comparator to show direct sex discrimination12/12/19
In Commissioner of the City of London Police v Geldart, the Employment Appeal Tribunal (EAT) has found that a female police officer who claimed direct sex discrimination when her employer stopped paying her a ‘London allowance’ during maternity leave did not have to prove that the force would have treated a male comparator differently.
Under Part 6 of the Police Regulations 2003 (the Regulations), the Claimant, a serving police officer, was entitled to a “London allowance”, paid as a recruitment incentive. When she went on maternity leave, she was paid the full allowance for the first 13 weeks, half the allowance for 10 weeks, and no allowance for the remainder of her maternity leave. She brought a claim under section 13 Equality Act 2010 (the Act), arguing that the failure to pay her the allowance in full throughout her maternity leave amounted to direct sex discrimination. She did not seek to rely on section 18 of the Act which specifically provides for pregnancy and maternity discrimination.
The Employment Tribunal upheld her claim and City of London Police appealed to the EAT.
The EAT upheld the ET’s decision and dismissed the police force’s appeal. The two parts of the Regulations that dealt with pay (Part 4) and allowances (Part 6) were clearly separate, and those provisions of the Regulations which reduced entitlement to pay did not apply to the London allowance. Paragraph 3(a) of Annex U to the Regulations simply provides that “a member of the City of London…police force shall be paid a London allowance”. The Claimant remained a member of the force throughout her maternity leave and was therefore entitled to payment of the allowance.
The City of London Police argued that because the Claimant had brought her claim as a sex discrimination claim under section 9 of the Act, and not specifically a claim of pregnancy and maternity discrimination under section 18, she was required to show that a man in comparable circumstances would have been treated more favourably (there is no requirement for a comparator in a section 18 claim; the woman simply needs to show that she has been treated unfavourably because of her pregnancy or maternity leave). The EAT dismissed this argument, however, finding that section 18 was not an exclusive statement of the circumstances in which a claimant can claim of discrimination by reason of pregnancy or maternity. Having found that she was treated unfavourably because she was on maternity leave, it was correct to find that she had been subjected to maternity discrimination, which did not require her to produce a comparator.
What to take away
This decision will of course be of particular interest to police employers, as it concerns a the interpretation of the Regulations and the distinction between “pay” and “allowances”. However, the case will also impact on employers across all sectors, as it emphasises that where a woman is treated unfavourably because of pregnancy or maternity, she can rely on the principle that there is no need to show a comparator, even where she does not bring her claim under the specific pregnancy and maternity protections in the Equality Act.
For further information on how this issue might affect your organisation, please contact Paul McFarlane, Lee Carroll or Raj Chahal.