(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 1355
| Jurisdiction | UK Non-devolved |
| Judge | Mrs Justice Eady |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 23 October 2023 |
Judgment approved by the Court for handing down Chief Constable of Derbyshire Constabulary and ors v Clark and Bell
© EAT 2023 Page 1 EAT 135
Neutral Citation Number: [2023] EAT 135 Case No: EA-2022-000021-OO
EA-2022-000123-OO
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 23 October 2023
Before :
THE HONOURABLE MRS JUSTICE EADY DBE (PRESIDENT)
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Between :
CHIEF CONSTABLE OF DERBYSHIRE CONSTABULARY
CHIEF CONSTABLE OF WEST MIDLANDS CONSTABULARY
SECRETARY OF STATE FOR HOME DEPARTMENT
Appellants/Respondents to Cross-Appeal
- and –
MS N CLARK
MRS M BELL
Respondents/Appellants in Cross-Appeal
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Peter Lockley (instructed by East Midlands Police Legal Services and Joint Legal Services for
Staffordshire Police and West Midlands Police) for the Chief Constable Appellants/Respondents to
the Cross-Appeal
Elizabeth Hodgetts (instructed by Government Legal Services) for the Secretary of State
Appellant/Respondent to the Cross-Appeal
Jack Feeny (instructed by Penningtons Manches Cooper LLP) for the Respondents/Cross-
Appellants
Hearing date: 25 July 2023
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JUDGMENT
This judgment was handed down by the Judge remotely by circulation to the parties' representatives
by email and release to The National Archives.
The date and time for hand-down is deemed to be 10:30 on 23.10.2023
Judgment approved by the Court for handing down Chief Constable of Derbyshire Constabulary and ors v Clark and Bell
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SUMMARY
Disability discrimination – jurisdictional points – whether Employment Tribunal has jurisdiction to
hear a claim of unlawful discrimination arising out of the operation of regulation 12 of the Police
Injury Benefit Regulations 2006 – sections 61 and 108 Equality Act 2010
The claimants were former police officers who had suffered work-related injuries, which had
subsequently led to total and permanent disablement. Because their respective total and permanent
disablements had occurred more than 12 months after they had suffered their injuries, the claimants
were not entitled to a disablement gratuity under regulation 12 of the Police Injury Benefit
Regulations 2006 (“PIBR 2006”). By separate claims, the claimants each sought to bring claims of
disability discrimination before the Employment Tribunal (“ET”) in respect of the 12 month rule for
entitlement under regulation 12 PIBR 2006. Their claims were pursued under section 108,
alternatively section 61 of the Equality Act 2010 (“EqA”); Ms Clark’s claim also placed reliance on
principles of European Union (“EU”) law.
The ET held that the claims could not be pursued under section 108 but did fall within its jurisdiction
by means of section 61 EqA, because the regulation 12 PIBR 2006 benefit fell within the definition
of an occupational pension scheme for the purposes of section 1 Pension Schemes Act 1993 (“PSA”).
The respondents appealed against the conclusion in relation to section 61 EqA; the claimants cross-
appealed in respect of section 108.
Held: allowing the appeal and dismissing the cross-appeal
The ET had erred in its construction of section 1 PSA, which required (relevantly) that the benefit in
issue should be provided on retirement or termination of service. While the disablement gratuity
provided by regulation 12 PIBR 2006 required that the police officer’s service had ceased, that was
insufficient to establish entitlement: the benefit was only payable after the cessation of service at the
point when the officer was deemed to be totally and permanently disabled by reason of a relevant
injury. The grammatical construction of regulation 12 PIBR 2006 was further supported by the
Judgment approved by the Court for handing down Chief Constable of Derbyshire Constabulary and ors v Clark and Bell
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historical and legislative context.
Moreover, the claimants could not establish a directly effective right under EU law. The benefit in
issue was not paid “in consideration for work” (see article 157 of the Treaty on the Functioning of
the EU) and was not directly related to the claimants’ periods of service (see the decisions of the
Court of Justice of the European Union in Bestuur Van Het Algemeen Burkerlijk Pensioenfonds
v Beune [1995] 2 CMLR 30, Griesmar v Ministre de L’Economie [2003] 3 CMLR 5, and Maruko
v Versorgungsanstalt der Deutschen Bühnen [2008] 2 CMLR 32). As such, it could not be said to
be “pay” for the purposes of the EU Directive 2000/78 (“the Framework Directive”); as the domestic
legislative and historical context suggested, it instead fell to be considered as an injury benefit granted
under “state schemes or similar, including state social security or social protection schemes” and
thus coming within the exception at article 3(3) Framework Directive.
By their cross-appeal the claimants did not seek to argue that the ET had erred in its conclusion under
section 108 EqA but said that supported their case under EU law and/or as to the construction of
section 61 EqA; for the reasons provided in rejecting those earlier submissions, the cross-appeal was
refused.
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