Thread by @JasonBraier

1/ City of London Police v Geldart: CA allows appeal against ET/EAT finding that not paying the London Allowance to a police officer throughout maternity leave was direct discrimination. G's indirect discrimination claim was remitted back to the ET. #ukemplaw

2/ This appeal concerns the London Allowance paid to London-based police officers. It's paid to officers in City of London & Met police for recruitment and retention purposes rather than for cost of living reasons (for which there's London weighting).

3/ G was paid London Allowance for her 1st 18 weeks of maternity leave though not for the additional period of maternity leave which followed. Was she entitled to it under her Terms of Service? Was it directly discriminatory to fail to pay it for that additional period?

4/ The 'contractual' entitlement arguments hinge on construction of the Terms of Service. The London Allowance is set out under the Allowances & Expenses section rather than the Pay section.

5/ Both the ET & EAT found that structural issue placed the London Allowance outside of restrictions in the Police Regs on entitlement to pay outside of the 1st 18 weeks of maternity leave. The CA found likewise & thus London Allowance was payable throughout maternity leave.

6/ That would have provided a complete answer had G brought a claim in debt before the County Court, but she had chosen to bring an EqA claim before the ET instead (with the injury to feelings advantages), so entitlement was merely a preliminary point.

7/ After a brief journey through the relevant EqA & EU discrimination provisions, Underhill LJ writes a brief textbook section on EU case law on the rights of pregnant women, summarising Dekker, Hertz, Webb & Gillespie.

8/ G's claim was pleaded initially under s.13 & s.18, though the latter was withdrawn on account of police officers not taking maternity leave under the MAPLE Regs 99 & hence falling outside of s.18. The Police's position was that s.13 required a comparator (regardless of Webb)

9/ The ET & EAT rejected a submission by the police that a male comparator was required & that Webb v EMO didn't apply any longer to direct discrim claims given the statutory protection for pregnancy & maternity-related discrim under s.18 EqA.

10/ The CA took a different view. 1st, it characterised the reason why G was subjected to the treatment in question as 'absence' rather than 'maternity absence'. The commissioner understood London Allowance to be a form of pay, only available to officers ready & willing to work.

11/ That understanding was subject to exceptions including the 1st 18 weeks of maternity leave, but the criterion which produced the non-payment to her of the London Allowance was her unavailability for work rather than why she was unavailable for work.

12/ Underhill LJ relied heavily on the fact that those on maternity leave are required to be paid maternity pay because they are not otherwise entitled to pay when unavailable for work. Here the focus on 'absence' rather than 'maternity absence is consistent with that scheme.

13/ The fact the Commissioner was mistaken in treating London Allowance as pay didn't affect the analysis. Whether or not a comparator is needed, G's s13 claim fails (either as the treatment isn't because of her sex or because the absent male comparator would be treated the same)

14/ That left the indirect discrimination claim. It had been dismissed (in opaque terms) by the ET, G cross-appealed to the EAT in the Respondent's Answer against that dismissal but the EAT felt no need to deal with it due to its dismissal of the police's direct discrim appeal.

15/ The CA remitted this claim to the ET. The ET had made no findings of fact on the s.19 point & the CA was not prepared to determine it. The CA was prepared to make findings on 1 relevant issue - the application of EqA s.71.

16/ Underhill LJ described s.71 as being opaque & had to look at the EqA Explanatory notes to work out when it may have effect - where an employee has a direct discrim claim re a term defining pay but not comparator doing equal work. It didn't apply in G's case.

17/ So there we have it, an interesting case but pretty restricted in its likely use outside of the specific factual circumstances in which G found herself. Here's a link to the judgment for those who've reached the end of the thread: bailii.org/ew/cases/EWCA/… #ukemplaw