The claimant was a metropolitan police officer who was on maternity leave.   Under the Police Regulations 2003 a metropolitan police officer is entitled to a London Allowance throughout the duration of maternity leave.  The claimant was on maternity leave for 41 weeks and she received occupational maternity pay amounting to 18 weeks’ pay as well as Statutory Maternity Pay.  The claimant was only given her London Allowance for those 18 weeks rather than for the duration of the maternity leave.  Accordingly, a claim was brought for the 23 weeks’ unpaid allowance as well as a claim for sex discrimination.  The Regulations were clear about the need for the Allowance for the whole duration, yet the legal issue was more complicated for the discrimination point.

The direct discrimination claim was upheld by the Tribunal and she received compensation for injury to feelings as well as the underpayment.  The reasoning of the Tribunal was that it was inevitably because of sex because the allowance was not paid due to maternity leave.   Therefore, there was no need to prove that a man would have been treated differently.  The EAT upheld this decision.

The Commissioner appealed to the Court of Appeal.  The argument made by the Commissioner was that there should have been a comparison to males in similar positions, such as those on sick leave, who would not have received the allowance. The Court of Appeal reiterated that the Regulations meant that the London Allowance was payable during maternity leave especially considering that there was no disapplication regulation for maternity yet there was one for those on a career break.   On the issue of direct discrimination, reference was made to Shamoon where the focus should be on why the claimant was treated in that way rather than considering separate issues of being treated less favourably than a comparator.  The reason that no allowance was given was that the Commissioner had misunderstood the Regulations and felt that it fell under Pay in a separate part of the Regulations.   Therefore, it was on the basis that she was not available for work that she did not receive the allowance and the maternity was immaterial.  Accordingly, the Tribunal had erred in finding that it was inevitably due to sex and that the real reason was absence rather than maternity.   Therefore, that aspect of the appeal was allowed.  A cross-appeal was also allowed regarding indirect discrimination which had not been fully examined so, on that point, the case was remitted to the Tribunal.

Practical Lessons

The disaggregation between an ‘absence’ and ‘maternity’ is somewhat of a surprising one to make.  It seems illogical to suggest that the individual was treated, for the purposes of pay and London Allowance, as being merely absent even though it was intrinsically linked to maternity.  The practical effect was that it removed the fact that it was inevitably linked to maternity and sex thereby resulting in direct discrimination.  However, it seems to be too forgiving for the Commissioner who had made a clear error and that it did disadvantage those on maternity.  It will be interesting to see how the indirect discrimination aspect is considered by the Tribunal.
https://www.bailii.org/ew/cases/EWCA/Civ/2021/611.html