Is it sex discrimination to withhold an allowance from an employee during their maternity leave?
The laws around pregnancy, maternity leave and discrimination are complex and, if an employee’s maternity leave is not carefully managed, an employer may find themselves liable for maternity or sex discrimination.
The recent Court of Appeal case of Commissioner of the City of London Police v Geldart underlines this risk for employers and is a useful reminder of what will and will not amount to sex discrimination.
What happened?
Ms Geldart was a police officer. She went on maternity leave and was paid full pay for 13 weeks, half pay for ten weeks and statutory maternity pay for the remainder of her maternity leave in accordance with the police force’s policies. Under the Police Regulations 2003, she was also entitled to the London Allowance, which was a recruitment incentive payment for police officers serving in London. The force interpreted the regulations as entitling Ms Geldart to receive the allowance during her maternity leave, but only to the same degree that she was entitled to maternity pay. Therefore, she was only paid 18 weeks of the allowance (spread over 23 weeks) during her 41-week period of maternity leave.
Ms Geldart brought a range of discrimination claims in response. This article focuses on her direct sex discrimination claim. In a direct discrimination claim, the claimant must first be able to show that they have been treated less favourably than others and, secondly, that this unfavourable treatment occurred because of their protected characteristic (in this case, Ms Geldart’s sex). A direct discrimination case normally also requires the claimant to identify a comparator who they say they have been treated less favourably than (such as a male comparator).
What was the initial decision?
The Employment Tribunal agreed with Ms Geldart and found that the allowance had not been paid because she had been on maternity leave, and this represented sex discrimination. The Tribunal found that there was no provision in the Police Regulations 2003 for the allowance to be reduced or withheld during maternity leave. In reaching this decision, the Tribunal relied upon the established case law principle that discrimination on the grounds of someone’s pregnancy or maternity leave is also inherently sex discrimination, and there is no need to identify a male comparator in such cases.
The police force appealed to the Employment Appeal Tribunal, which dismissed their appeal. The force then appealed again to the Court of Appeal.
The Court of Appeal decision
The Court of Appeal allowed the force’s appeal in part. It rejected the appeal against the Tribunal’s decision that Ms Geldart had been entitled to receive the allowance in full throughout her maternity leave.
However, it did grant the appeal against the finding of direct sex discrimination. The Regulations set out that the allowance would be paid to an employee that was “ready and willing to work”, save for in certain specified cases of absence. The court found that the reason Ms Geldart was not paid the allowance after the first 23 weeks of her leave was because she was not available for work. That is, it found that the reason for withholding payment was not because of the specific fact she was on maternity leave but because of the more general point that she was interpreted under the Regulations to be absent from duty. Therefore, the court concluded that it was not direct discrimination. Whilst the force had wrongly interpreted the Regulations in not paying her, and she had in fact been entitled to receive the allowance throughout her maternity leave, that mistake and non-payment were not motivated by her maternity leave.
A separate indirect discrimination claim was referred to the Employment Tribunal for reconsideration.
Interestingly, the Court of Appeal also commented that Ms Geldart would have been successful had she brought a simple debt claim against the police force for failing to correctly apply the allowance rules.
What are the learning points for employers from this decision?
Employers should be fully aware of the rules around any benefits or allowances they offer their employees over and above their basic pay so that allegations of breach of contract and discrimination can be avoided. If employers suspect that any of their policies or benefits could be directly or indirectly discriminatory in their application, they should seek legal advice at the earliest opportunity.
This case is also a cautionary reminder that claims, particularly low-value ones, can often be more efficiently dealt with via a settlement for economic reasons. The judge had urged the parties to reconsider settling the case. The value of the outstanding allowance was only £1,941.60. After four years of protracted legal proceedings, it was no closer to being resolved and had no doubt incurred disproportionate legal costs for both parties.
Here to Help
If you would like to discuss any issues around maternity leave and discrimination, you can contact a member of our Employment Team on 0161 941 4000 or email The Employment Team.