Commissioner of The City of London Police v Claire Geldart
| Jurisdiction | England & Wales |
| Judge | Baker LJ,Lord Justice Underhill,Newey LJ |
| Judgment Date | 28 April 2021 |
| Neutral Citation | [2021] EWCA Civ 611 |
| Date | 28 April 2021 |
| Docket Number | Case No: A2/2019/3118 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 611
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM:
THE EMPLOYMENT APPEAL TRIBUNAL
Mr Justice Lavender
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Baker
and
Lord Justice Newey
Case No: A2/2019/3118
Ms Louise Chudleigh (instructed by the Comptroller and City Solicitor) for the Appellant
Mr Douglas Leach (instructed by Penningtons Manches Cooper LLP) for the Respondent
Hearing dates: Thursday 14 th and Friday 15 th January 2021
Approved Judgment
INTRODUCTION
The Claimant in these proceedings, who is the Respondent to this appeal, is a constable serving in the City of London police. The Respondent in the proceedings, the Appellant before us, is the Commissioner. I will refer to them as “the Claimant” and “the Commissioner” respectively. As a constable the Claimant is an office-holder, and she has no contract of employment with the Commissioner (or anyone else). Her remuneration and other terms of service are prescribed by the Police Regulations 2003 and by “determinations” made by the Home Secretary under powers conferred by those regulations: such determinations are published as Annexes to a Home Office Circular.
The Claimant was absent from duty on maternity leave from 18 December 2016 to 4 October 2017, a total of 41 weeks. During that period she received, in accordance with her terms of service, “Police Occupational Maternity Pay” (“OMP”) equivalent to eighteen weeks' pay. 1 Thereafter she received a further sixteen weeks' statutory maternity pay.
The claim concerns an element in the Claimant's remuneration called “London Allowance” (not to be confused with “London Weighting”). It is her case that she was entitled to receive London Allowance in full during her absence on maternity leave. The Commissioner believed that she was only entitled to receive it to the same extent that she was entitled to OMP, and she was accordingly paid it in respect only of eighteen weeks. The total amount of her claim is £1,941.60, representing 23 weeks' unpaid allowance.
It would have been open to the Claimant to bring proceedings for the shortfall as an ordinary debt claim in the County Court. (She could not have brought an “unlawful deductions” claim in the Employment Tribunal under Part II of the Employment Rights Act 1996 because she is not a “worker” within the meaning of the Act.) Instead, however, she chose to bring proceedings in the Employment Tribunal under the Equality Act 2010, claiming that the underpayment in question constituted unlawful discrimination. She originally relied only on direct discrimination (under either section 13 or section 18 of the Act), but she subsequently sought permission to amend to rely in the alternative on indirect discrimination. We were not told why she chose to proceed under the 2010 Act rather than by a claim in debt; but one of the consequences of her doing so was that she could claim not only the unpaid sum but also compensation for injury to feelings caused by it having been withheld.
The claim was heard at London Central by a Tribunal comprising Employment Judge Snelson, Mrs M Pitfold and Mr J Carroll on 8 and 9 October 2018. By para. (1) of a Judgment with Reasons sent to the parties on 6 November the Tribunal held:
“The Claimant's complaint of direct sex discrimination in respect of the non-payment or partial payment of London Allowance during her absence from duty on maternity leave is well-founded.”
Para. (2) recorded that “all other claims” were dismissed: this is evidently a reference to the alternative indirect discrimination claim. She was awarded compensation for injury to feelings in the sum of £4,000.
The Commissioner appealed to the Employment Appeal Tribunal. The appeal was heard before Lavender J on 16 May 2019, together with a precautionary cross-appeal by the Claimant as regards the claim of indirect discrimination. By a judgment handed down on 29 November 2019 he dismissed the appeal: he did not find it necessary to consider the cross-appeal and made no explicit order in relation to it. The reason for the delay between the hearing and the eventual decision is that, as will appear below, Lavender J felt it necessary to invite further written submissions on one of the issues.
On 4 March 2020 Simler LJ granted the Commissioner permission to appeal against the decision of the EAT. On 23 June she granted the Claimant permission to raise the indirect discrimination claim by way of cross appeal.
The Commissioner has been represented before us by Ms Louise Chudleigh and the Claimant by Mr Douglas Leach, both of counsel. Both appeared in both tribunals below.
THE RELEVANT TERMS OF SERVICE
The Police Regulations 2003 comprise ten Parts. We are directly concerned only with Part 4, which is headed “Pay”, and Part 6, which is headed “Allowances and Expenses”, but I will have occasion to refer also to Part 5, “Leave” (which comprises only regulation 33).
PART 4: PAY
Part 4 comprises regulations 24–32. Regulation 24 (1) provides that, subject to the following regulations, “the pay of members of police forces shall be determined by the Secretary of State”. The following regulations deal with various particular matters relating to pay. For our purposes the only relevant provisions are regulation 28, which gives the Secretary of State power to determine “pay during periods of sick leave taken in accordance with a determination made under regulation 33 (5)”, and regulation 29, which provides that “[the] Secretary of State shall determine the entitlement of female members of police force to pay during periods of maternity leave”. I need to summarise parts of the determinations made under each of those regulations.
The determination under regulation 24 is at Annex F to the Circular (headed “Pay”). It is divided into various Parts. Parts 2–8 prescribe basic pay for the various ranks of officer (that for constables being prescribed by Part 2). The other Parts deal with other aspects of pay, including (at Part 10) London Weighting.
The determination under regulation 28 is at Annex K. It provides for a member of a police force “who is absent on sick leave, in accordance with Regulation 33 (5)” to receive full pay for six months in any one-year period and half-pay for a further six months. I need not summarise the provisions of regulation 33 (5) or the determination made under it: they simply set out the regime governing sickness absence.
The determination under regulation 29 is at Annex L, which is headed “Maternity Pay”. Paragraph 1 reads:
“Subject to the following provisions of this determination, a female member of a police force who satisfies the conditions in paragraph (2) is entitled to be paid as respects the first eighteen weeks of any period or periods of maternity leave in any one maternity period (as defined in the determination on maternity leave made under regulation 33) taken in accordance with the determination on maternity leave made under regulation 33, but is not entitled to be paid thereafter.”
The “determination on maternity leave made under regulation 33” is at Annex R: it defines “maternity leave” as a period of fifteen months, the start date of which can be chosen by the officer within prescribed limits. Paragraph 5 provides for the amount of pay under the determination to be reduced by the amount of statutory maternity pay received.
Police pensions are calculated by reference to Pay under Part 4 (including London Weighting).
PART 6: ALLOWANCES AND EXPENSES
Part 6 comprises regulations 34–39. We are primarily concerned with regulation 34 (“Allowances”), which empowers the Secretary of State to determine “the entitlement of members of a police force to any allowance”.
The determination made under regulation 34 is at Annex U. This provides for a number of allowances of very different characters including, at Part 3, “London Allowance”. Sub-paragraph (c) reads:
“A member of the City of London or metropolitan police force shall be paid a London allowance at a rate determined by the Commissioner of the relevant force with regard to location and retention needs, following consultation with the joint branch board or Joint Executive Committee, and not exceeding the maximum rates set out in the subparagraph (b) below.”
The maximum rates are then prescribed by sub-paragraph (b). Sub-paragraph (c) provides that a member of either of the two London forces shall be entitled to receive the allowance during a period of disciplinary suspension. It was common ground before us that the purpose of London Allowance is accurately stated in para. 7.6.40 of the Final Report of Sir Thomas Winsor's Independent Review of Police Officer and Staff Remuneration and Conditions (“the Winsor Report”), which reads:
“Officers in the City of London Police and Metropolitan Police are paid a London allowance in addition to London weighting. The London allowance is paid in order to recruit and retain officers in London, and is thus a reflection of labour market conditions (rather than cost of living) in London.”
It is clear from that passage that London Allowance has a different purpose from London Weighting, which is reflected in its characterisation as an allowance under Part 6 rather than an element in “Pay” under Part 4. To anticipate, that is a distinction which the Commissioner overlooked when paying officers on maternity leave.
I should also note the terms of regulation 36, which reads:
“If a member of a police force who is regularly in receipt of an allowance to meet an expense which ceases during his or her absence from duty is placed upon the sick list or is on maternity leave, the...
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