Background: 

The issue related to Regulation 12 of the Police (Injury Benefit) Regulations 2006 which provided for a lump sum gratuity where the individual was injured on duty without their own fault, they had ceased to be a member of the police force and within 12 months of the injury were totally and permanently disabled.  The claimants had received an injury award under Regulation 11 when they retired on the grounds of permanent disability.  However, they were refused a Regulation 12 gratuity as their permanent disablement came more than 12 months after their injuries. 

The argument raised by the claimants was that the refusal of Regulation 12 amounted to disability discrimination.   The respondents argued that the Tribunal did not have jurisdiction to hear the complaint. 

Outcome: 

The Tribunal, at first instance, held that it did have jurisdiction to deal with the complaint on the basis that it was part of an occupational pension scheme and that was allowed under Section 61 of the Equality Act 2010.   The occupational pension scheme being defined under the Pension Schemes Act 1993, Section 1.  The first issue for the EAT was to determine whether this decision was correct and if benefits on ‘retirement’ or ‘termination of service’ amounted to an occupational pension scheme.  The second issue was whether the benefit payable under the Regulations amounted to pay so that a remedy had to be provided under the EU Directives on equal treatment. 

The EAT allowed the appeal.   It was held that the gratuitous payment under Regulation 12 did not fall within the definition of an occupational pension scheme.   Regulation 12 did not require a causal link between the officer’s service, the injury, and the subsequent disablement.  It could be the case that an individual ceases to be a member of the police force and then they subsequently become disabled.  Therefore, the benefit did not arise on cessation.  The EAT went on to cite that if Parliament had wanted the benefit to be categorised as an occupational pension scheme then it would have done so in the Regulations as it had done elsewhere. Instead, it did not and the inference was that Parliament had done so deliberately, that being to show that it was not part of the occupational pension scheme. 

In terms of the second issue relating to EU Law the EAT held that the gratuity was not in consideration for work.   The lack of relationship with the period of service demonstrated that it was related more so to social policy rather than the relationship of employment.  Accordingly, it was not categorised as pay for the purpose of the Directive. 

Practical Guidance for Employers: 

This case demonstrates a fairly novel area of whether a payment is categorised as part of an occupational pension scheme.   It is important from the perspective of Tribunal action when it comes to discrimination action as it would only relate to those matters which are seen as being related to employment and occupational as to whether the Tribunal has jurisdiction.  In this case, the Tribunal found that the gratuity was there as a greater part of ‘social policy’ and as a result was not to be justiciable by the Tribunal in this regard. 

The full case is available here:
https://assets.publishing.service.gov.uk/media/65364f2b26b9b1000daf1d68/_1__Chief_Constable_of_Derbyshire_Constabulary__2__Chief_Constable_of_West_Midlands_Constabulary__3__Secretary_of_State_for_the_Home_Department_v__1__Ms_N_Clark__2__Mrs_M_Bell__2023__EAT_135.pdf