City of London Police v Geldart

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 officeholder, 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. (Footnote: 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 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 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 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:

Police pensions are calculated by reference to Pay under Part 4 (including London Weighting).

Part 6 comprises regulations 34-39. We are primarily concerned with regulation 34

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:

I should also note the terms of regulation 36, which reads:

The issues raised by the Commissioner‘s appeal can most conveniently be summarised as follows:

If the Commissioner loses on issue (A) but wins on issues (B) and (C), it will be necessary to consider the Claimant‘s cross-appeal raising her claim that the nonpayment of London Allowance for the period in question constituted indirect discrimination. I need not identify at this stage the issues that arise under that claim.

In the ET and the EAT the Commissioner argued that the Claimant was not entitled to bring a direct discrimination claim in relation to London Allowance because under the scheme of the 2010 Act such a claim can only be brought under the distinct ―equality of terms‖ provisions: see para. 38 below. Both the ET and the EAT rejected that argument, and it is not pursued before us. However, the equivalent argument is raised in the context of the indirect discrimination claim.

THE “CONTRACTUAL” ISSUE

The foundation of the Claimant‘s case on this issue, as advanced by Mr Leach, is the clear distinction in the Regulations between ―Pay‖, which is the subject of Part 4, and ―Allowances and Expenses‖, which are the subject of Part 6. The regime governing pay during maternity leave which the Commissioner applied to her entitlement to London Allowance derives from regulation 29. Regulation 29 falls within Part 4, which proceeds on the basis that officers are only entitled to receive ―pay‖ during periods of absence from duty to the extent that specific provision is made – as it is for sickness absence under regulation 28 and for maternity absence under regulation 29 itself (Footnote: ²). But those provisions have no application to London Allowance, which is provided for in a determination made under Part 6 and is treated as an entitlement of a fundamentally different character from ―pay‖ under Part 4. Sub-paragraph (a) under

Mr Leach contended that the fact that the entitlement to London Allowance arises under Part 6 rather than Part 4 is in no way anomalous. It reflects the fact that it has always been seen as a recruitment and retention payment, rather than as an element in remuneration reflecting any peculiar demands of police or the higher cost of living (which is separately recognised by London Weighting – see the passage from the Winsor report quoted at para. 16 above). The difference in character also results in it not being taken into account for pension purposes.

That case was accepted by the ET. At para. 20 of its Reasons it says:

In the EAT Lavender J reached the same conclusion. Paras. 34 and 35 of his judgment read:

Ms Chudleigh‘s argument that the ET and the EAT were wrong started from the proposition that London Allowance would naturally be described as part of the Claimant‘s pay, or remuneration, and that it was common ground that it would be so regarded for the purpose of domestic and EU equal pay law. From that basis she proceeded to the proposition that, as she put it in her skeleton argument, ―it is an established principle of law that women are not entitled to receive full pay during maternity leave‖. She referred us to the decisions of the CJEU in Gillespie Northern Health and Social Services Board, C-342/93, [1996] ICR 498, and Gassmayr v Bundesminister für Wissenschaft und Forschung, C-194/08, [2011] 1 CMLR 175,

I do not see how either point assists the Commissioner. No doubt London Allowance will count as pay for some purposes, but the question in this case is whether it does so for the purpose of the 2003 Regulations, and more specifically so as to be subject to the limits on the right to maternity pay under regulation 28 and Annex L. And to point out that the right to maternity pay under EU law and at domestic law is limited says nothing about the extent of any right conferred by a worker‘s own (typically contractual) terms and conditions.

Apart from that point Ms Chudleigh had no answer to what I consider to be the cogent reasoning advanced by Mr Leach and accepted by both tribunals. I agree with them that on the natural reading of the Regulations and the relevant determinations London Allowance is payable during the entirety of maternity leave and does not fall to be treated in the same way as pay under Part 4; and, having regard to its particular nature and purpose, such a construction cannot be regarded as so contrary to ―commercial common sense‖ as to require a strained construction.

In the course of oral submissions we raised with Mr Leach the question whether it was a consequence of his submission that an officer in one of the London forces who took a career break, which is another form of leave provided for under regulation 33 (see paragraph (12)), would be entitled to be paid London Allowance throughout what might be an absence of some years. We were shown the relevant determination, which is Annex OO. Paragraph (10) provides that during a career break the officer remains a member of his or her force for the purpose of the Regulations and determinations made under them ―other than … the regulations and determinations … under Part 4 (Pay), Part 5 (Leave) and Part 6 (Allowances and Expenses)‖. The fact that the Secretary of State in this context makes express provision for the disapplication of provisions relating to allowances as well as pay reinforces my view that an officer who is absent on maternity leave should not lose her entitlement to any applicable allowance without similar express provision.

I should also mention for completeness that in the ET the Commissioner argued in the alternative that he was entitled to suspend payment of London Allowance under regulation 36 and should be treated as having done so. That argument was rejected by the ET and not pursued in the EAT (see para. 35 (3) of Lavender J‘s judgment) or (therefore) before us.

I would therefore dismiss ground 1 of the appeal.

THE DIRECT DISCRIMINATION ISSUE

Part 5 of the 2010 Act proscribes discrimination in the field of ―Work‖. Chapter 1 is headed ―Employment etc‖. Section 39 is headed ―Employees and applicants‖. Subsection (2) reads:

―Discrimination‖ is defined under Chapter 2 (―Prohibited Conduct‖) of Part 2 of the Act. For the purpose of this part of the appeal, we are concerned primarily with section 13, but section 18 is also indirectly relevant.

Section 13 is headed ―Direct Discrimination‖. I need only set out subsection (1), which reads:

It will be observed that the definition in section 13 requires a comparison – B must be less favourably treated than ―others‖. Section 23 (1) provides (so far as material):

Section 18 is headed ―Pregnancy and Maternity Discrimination: work cases‖. It reads, so far as material:

It should be noted that section 18 requires only that the treatment complained of be ―unfavourable‖, rather than, as in section 13, that it should be less favourable than that accorded to a comparator.

Both section 13 and section 18, and also section 23, substantially reproduce, despite differences of wording, the provisions of the Sex Discrimination Act 1975. The definition of ―direct discrimination‖ in the 1975 Act was in section 1 (1) (a), the equivalent of section 23 (1) being section 5 (3). The predecessor of section 18 was section 3A, which was introduced by amendment with effect from 1 October 2005 (and was itself amended with effect from 6 April 2008). Although the predecessor provisions used the terminology of ―on the ground of‖, rather than ―because of‖, it is well-established that the two phrases connote the same test. Prior to the enactment of section 3A there had been no proscription of pregnancy and maternity discrimination as such, although, as will appear, it was to some extent at least subsumed within direct discrimination on the grounds of sex.

Chapter 3 (―Equality of Terms‖) of Part 5 of the Act contains a separate regime governing equality in terms of employment as between men and women. It substantially reproduces, though with much re-drafting, the provisions of the Equal Pay Act 1970. As noted at para. 20 above, there was an issue in the ET and the EAT about whether the direct discrimination claim should have been brought under those provisions, but that issue is not live before us.

For the purpose of the issue before us there is no need to refer to the underlying EU legislation. But in order to understand the case-law I should mention a few milestones in the history:

In the period before the coming into force of the Pregnant Workers Directive the CJEU had to consider the extent to which article 119 and the Equal Pay and Equal Treatment Directives protected the positions of women who were pregnant or on maternity leave. I need not summarise the full case-law but I should mention a few key authorities.

In Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus, C-177/88, [1992] ICR 325, the Court held that a decision not to recruit a woman because of the cost of funding her maternity absence constituted direct discrimination on the grounds of her sex, contrary to the Equal Treatment Directive. As the Court put it succinctly at para. 12 of its judgment:

In Handels og Kontorfunktionaerernes Forbund i Danmark v Dansk

In Webb v EMO Air Cargo (UK) Ltd, C-32/93, [1994] QB 718, the CJEU held that it would be a breach of the Equal Treatment Directive to dismiss a pregnant employee even in circumstances where she had been recruited to cover the maternity leave of a colleague with whom her own maternity absence would overlap. This was no more than the application, in rather stark circumstances, of what it had already decided in Hertz. As it said at para. 19 of its judgment, ―the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex‖; and, as it pointed out, such dismissal will typically be because of the worker‘s absence from work during maternity leave. The judgment also addresses a suggestion by the House of Lords in its decision making the reference ([1993] ICR 175) that maternity absence was not discriminatory on grounds of sex because the essential element was the employee‘s absence rather than the reason for it, and that it could be equated with sickness absence. At para. 25 it said:

The authorities culminating in Webb establish that the dismissal of a worker, or the refusal of employment, because of current or anticipated pregnancy/maternity absence is to be treated as discrimination on the ground of her sex, without the need for the identification of a male comparator in materially the same circumstances. It is no answer to say that she would have been dismissed for the equivalent absence occasioned by something other than pregnancy/maternity, such as ill-health: the two situations are not comparable. I should note that there are several other decisions of the CJEU to the same effect – the only one to which we were specifically referred was Brown v Rentokil Ltd C-394/96, [1998] ICR 790 – but they simply reflect the working out of the principle in different situations.

Those cases are not, however, concerned with pay. In Gillespie v Northern Health and Social Services Board, to which I have already referred, the applicants were female health service employees who had taken maternity leave and received maternity pay in accordance with the applicable collective agreement. Their entitlements under the agreement were related to the amount of their pay at the time that they went on leave but did not take account of any pay increases taking effect after that date. They brought proceedings claiming that that failure constituted a breach of the principle of equal pay under article 119 and the Equal Pay Directive 1975 and/or of the requirements of the Equal Treatment Directive (which was directly applicable because they were employed by an emanation of the state). On a reference by the Northern Ireland Court of Appeal the CJEU held that the effect of article 119 and the Equal Treatment Directive was that it would be unlawful sex discrimination for a woman in receipt of maternity pay not to receive the benefit of any increases accruing during her absence. However, it made clear at para. 20 that:

As will appear, some reliance was placed by the ET in this case on the decision of the EAT (Cox J presiding) in Fletcher v NHS Pensions Agency [2005] UKEAT 0424/04,

At para. 1 of her original Grounds of Complaint the Claimant pleaded:

The Claimant‘s case is that the non-payment of London Allowance in respect of the last 23 weeks of her maternity leave constituted less favourable treatment because of her sex within the meaning of section 13 (1) of a kind falling within section 39 (2). She says that the effect of the authorities discussed at paras. 41-44 above, and in particular Webb v EMO, is that she does not need to identify a male comparator.

I should note how the Commissioner pleaded his response to the direct discrimination claim at paras. 26-27 of the Grounds of Resistance attached to his ET3. These read:

The ET dealt with the issues before it under six headings. The first addressed the ―contractual‖ claim. The second considered whether the Claimant should have brought her claim under Chapter 3. That is not an issue before us, and I say no more about it. The substance of the direct discrimination claim is succinctly addressed under issues (3), which the ET identified as ―Is a comparator required?‖, and (4) – ―Was the treatment complained of ‗because of‘ sex?‖. I take them in turn.

As to issue (3), it was Ms Chudleigh‘s submission that the introduction of a separate proscription of pregnancy and maternity discrimination, initially by section 3A of the 1975 Act and now in section 18 of the 2010 Act, meant that it was no longer necessary to give the definition of direct sex discrimination the extended meaning adopted in Webb v EMO; and that accordingly the claim must fail for want of a male comparator in the same circumstances. The Tribunal rejected that submission. At para. 26 of the Reasons it said:

As to issue (4), all that the Tribunal found it necessary to say, at para. 27, was:

Since the Tribunal refers in para. 27 to Webb v EMO and Fletcher, I should note what it had said about them at para. 19 of the Reasons, as part of its exposition of the legal framework:

For completeness, I should record that the fifth issue concerned a limitation point which is no longer live and that the sixth concerned the quantum of the award for injury to feelings.

The Commissioner appealed to the EAT on four grounds. Grounds 1 and 2 concerned the ―contractual claim‖, with which I have already dealt. Ground 3 raised the issue about whether the claim should have been brought under Chapter 3 of Part 5. Ground 4 was headed ―Failing to find that a comparator is required for claims under s. 13 EqA‖. That corresponds to issue (3) in the ET. Lavender J addressed it at paras. 9293 of his judgment and upheld the reasoning of the ET. For reasons which will appear I need not give the whole passage, but I should quote para. 93, which reads:

It will be seen that none of the Commissioner‘s grounds of appeal to the EAT explicitly challenged the ET‘s conclusion on issue (4) – ―Was the treatment complained of ‗because of‘ sex?‖. However Ms Chudleigh‘s skeleton argument did appear to contain such a challenge. Lavender J was evidently troubled by this question. Following the hearing he wrote to the parties asking for further submissions on this aspect, mentioning in particular the decision of the EAT in Interserve FM Ltd v Tuleikyte, to which I refer below. In the end, however, having considered both parties‘ submissions, he did not consider the question because he decided that in order to challenge the ET‘s reasons on issue (4) the Commissioner needed permission to amend the grounds of appeal, which he was not prepared to grant. I deal under issue (C) with whether he was right to take that course.

Conventionally the definition of ―direct discrimination‖ in section 13 (1) of the 2010 Act is analysed as comprising two elements – (1) whether the claimant received less favourable treatment than the appropriate comparator (the ―less favourable treatment‖ issue) and (2) whether the less favourable treatment was because of the relevant protected characteristic (the ―reason why‖ issue). However, it has long been recognised that these are two aspects of what is essentially a single question. The locus classicus is paras. 7-11 of the speech of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] ICR 337. At para. 8, having identified those two questions, he says:

The correct approach to the reason why issue is also well-established. The most authoritative statement is in para. 64 of the judgment of Lady Hale in R (E) v Governing Body of JFS [2009] UKSC 15, [2010] 2 AC 728, (―the Jewish Free School case‖). The ultimate question is ―what caused the treatment in question?‖. But, as Lord Nicholls observed at para. 29 of his speech in Chief Constable of West Yorkshire Police v Khan [2001] UKHL 48, [2001] ICR 1065, ―causation is a slippery word‖. Answering the causation question in this context may involve two different kinds of inquiry. In a straightforward case the putative discriminator will have overtly applied a criterion based on the protected characteristic. But in other cases, although the ostensible criterion is something else, the putative discriminator may still have been influenced in his or her decision by the proscribed factor, consciously or unconsciously: in such a case it is necessary to examine their mental processes to establish what caused them to act as they did. In the jargon of discrimination lawyers the former are sometimes described as ―criterion cases‖ and the latter as ―motivation‖ cases (Footnote: ⁶). The distinction is not black-and-white, but it is a useful working tool.

As a matter of simple fact, the reason why the Claimant did not receive London Allowance in respect of the 23 weeks in question is straightforward and not in dispute. It was because the Commissioner wrongly understood it to be, for the purpose of the Regulations (Footnote: ⁷), a form of pay governed by the principles applicable to

The real issue, however, is how that reason is to be characterised in law. Mr Leach submits that it should be characterised as ―maternity absence‖, and thus, on the basis of Webb v EMO, as being because of the Claimant‘s sex. Ms Chudleigh (consistently with para. 27 of the Grounds of Resistance) submits that it should be characterised simply as ―absence‖, the particular reason for the absence being immaterial.

In my view Ms Chudleigh‘s characterisation is correct. On the Commissioner‘s understanding that London Allowance was a form of pay, the basic rule under the Regulations (as in most employment situations) is that pay is only due if the employee is ready and willing to work, subject to special provision for certain kinds of absence/unavailability: see para. 59 above. Thus the reason why she was not paid except for the first eighteen weeks was, simply, that she was unavailable for work:

That approach, identifying ―absence‖ rather than ―maternity absence‖ as the relevant reason, echoes Lord Keith‘s initial analysis in Webb v EMO, which of course he had to abandon as a result of the decision of the CJEU: see para. 43 above. But Webb v EMO, together with Dekker and Hertz, which it followed, are cases of a different kind. They were not concerned with pay but with dismissal. That is a fundamental distinction. It is one thing to proscribe the dismissal, or other adverse treatment, of a woman for being absent as a result of pregnancy/maternity; but it is quite another to require that she be paid during a period of pregnancy/maternity absence. The scheme of both the domestic and the EU legislation is that a woman should receive ―maternity pay‖ on a prescribed basis for a prescribed period; but the whole premise of the scheme is that that is required because she would not otherwise be entitled to be paid since she is not available for work. That is stated explicitly by the CJEU in Gillespie: see para. 45 above. It is plainly not sex discrimination not to pay a female employee who is absent on maternity leave more than the amount of maternity pay to which she is entitled during the prescribed period, nor, if she remains absent beyond that period, not to pay her at all.

Although we are not bound by Fletcher my analysis is not inconsistent with the reasoning of the EAT in that case. As noted at para. 46 above, Cox J went out of her way to emphasise that that case was about unequal treatment and not about pay.

It is true that the Commissioner‘s belief that the London Allowance fell to be treated as ―pay‖ under the Regulations was mistaken. But that does not affect the analysis of the reason why he did not pay it after the first eighteen weeks. The focus must be on the criterion that he applied, rightly or wrongly.

On the basis of that conclusion, the direct discrimination claim fails whether or not the Claimant was obliged to identify a comparator: she loses straightforwardly on the basis that the treatment complained of was not because of her sex (or, applying Webb v EMO, because of her maternity absence). But in fact, as Lord Nicholls says in Shamoon, that finding also necessarily answers the less favourable treatment question: on the Commissioner‘s (mis)understanding that London Allowance fell to be treated as a form of pay, it would not have been paid to a man who was unavailable for work for 23 weeks in circumstances not covered by any express provision.

One way that Ms Chudleigh put her case was to submit that the Commissioner would not have paid London Allowance to a man who remained absent because of illness following the expiry of his sick pay entitlement. That is correct as a matter of fact, and it illustrates the fundamental point that officers who are not available for work are not entitled to be paid without special provision. But it is not itself the point: longterm maternity leave and long-term sickness cannot be equated and indeed attract different entitlements.

I should say something more about the relationship between the ET‘s issues (3) and (4), because it is relevant to issue (C) on this appeal. Although I can understand why the ET took them separately, they are in fact intertwined in a similar way to the two issues defined in Shamoon. If it were correct to characterise the reason for the nonpayment of London Allowance as ―maternity‖ or ―maternity absence‖ then it would indeed appear to follow from Webb v EMO, as the ET held on issue (3), that it was unnecessary to identify a male comparator in the same circumstances. If, however, as I would hold, the reason is simply ―absence‖, then Webb v EMO does not apply and the ET‘s finding on issue (3) was wrong. As Mr Leach accepted, the ET made life difficult for itself by addressing issue (3) before issue (4).

On this analysis the argument which Ms Chudleigh advanced in the ET to the effect that Webb v EMO had been rendered redundant by the enactment of section 3A of the 1975 Act falls away. It is referred to in the grounds of appeal and Ms Chudleigh‘s skeleton argument, but it did not feature in her oral submissions, and I need not address it, save to say that I am not surprised that the ET and EAT found it unconvincing.

Ms Chudleigh referred us to three other authorities in connection with the direct discrimination issue. None of them seems to me to go to the heart of the matter, but I should address them.

In Madarassy v Nomura International Plc [2007] EWCA Civ 33, [2007] ICR 867, the claimant was made redundant following her return from maternity leave. She claimed, inter alia, that she was selected for redundancy for reasons connected with her pregnancy or her absence on maternity leave (exactly how the case was put is not clear from the judgment). The ET dismissed that claim. Part of its reasoning was that a man in the same circumstances would have been treated in the same way. The claimant submitted, relying on Webb v EMO, that that was an error of law because in a case of alleged pregnancy/maternity discrimination there was no need for a male comparator. This Court rejected that submission. Mummery LJ, with whom Laws and Maurice Kay LJJ agreed, said, at paras. 118-119 of his judgment:

In Lyons v DWP Jobcentre Plus [2014] UKEAT 0348/13, [2014] ICR 668, the claimant suffered severe post-natal depression. She was eventually dismissed some time after the expiry of both her maternity leave and an agreed period of annual leave. The ET dismissed her claim of pregnancy/maternity discrimination under section 18 of the 2010 Act because the dismissal had occurred after the end of the protected period. It also dismissed a claim under section 13. The EAT (Cox J presiding) dismissed her appeal. As regards the section 18 claim it, in effect, followed Hertz in holding that outside the protected period dismissal for a maternity-related illness was not to be regarded as discrimination on the ground of the employee‘s sex. Although Ms Chudleigh sought to draw some support from Cox J‘s reasoning it is not in my view sufficiently close to any of the issues before us to be useful.

Finally, in Interserve FM Ltd v Tuleikyte [2017] UKEAT 0267/16, [2017] IRLR 615, the employer had a policy of automatically treating employees who had not received any pay for the last three months as ―leavers‖, which meant that they were sent P45s. The claimant took maternity leave but her earnings were too low to entitle her to statutory maternity pay. The policy was accordingly applied in her case at the conclusion of the three months. It appears that this did not ultimately result in her being dismissed, but it nevertheless had various adverse consequences. The ET found that the ―automatic consequence of applying this approach was to treat the Claimant unfavourably because she was absent on maternity leave‖ (see para. 8 of the judgment of the EAT), and accordingly constituted discrimination under section 18 (3) of the 2010 Act.The EAT allowed the employer‘s appeal. Simler P held – plainly correctly – that the correct approach to the question whether the treatment complained of was

For those reasons, I would hold that the ET was wrong to find at para. 27 of the Reasons that the non-payment of London Allowance for the final 23 weeks of the Claimant‘s maternity absence was because of her sex. I would accordingly, subject to issue (C), allow ground 3 of the appeal.

THE CONCESSION ISSUE

It was the Claimant‘s case in Mr Leach‘s skeleton argument that ground 3 of the appeal is not open to the Commissioner because:

I start with the basis on which the ET proceeded. I do not believe that Ms Chudleigh made the concession which the ET attributes to her at para. 27 of the Reasons. She told us that the ET must either have misunderstood her submissions or expressed itself wrongly. Its statement that it was common ground that the Claimant was treated as she was ―because she was on maternity leave‖ blurred the essential issue. There was

It is in my view much more likely that the ET misunderstood the Commissioner‘s case. It looks to me as if it regarded the crucial ―reason why‖ question, issue (4), as depending on the outcome of the comparator issue, issue (3), rather than the other way round. It is impossible to retrieve now exactly how the misunderstanding arose, and it may be that the responsibility is as much that of counsel as of the ET: the fact that the

Turning to Lavender J‘s refusal to allow the position to be corrected, he was right to hold that the Commissioner required permission to amend the grounds of appeal in order to challenge para. 27 of the ET‘s Reasons. Ms Chudleigh in her post-hearing submissions in the EAT sought permission to add the following ground:

Lavender J gave his reasons for refusing permission at para. 69 of his judgment, as follows:

I do not believe that those reasons justified refusing the Commissioner permission to argue what Lavender J himself describes as ―the fundamental question in a direct discrimination case‖, which was clearly in issue on the original pleadings. I do not believe that it was necessary for the Commissioner to adduce evidence about the hearing in the ET in order to establish that there had been a misunderstanding of some kind. It is perhaps unfortunate that the question arose only in post-hearing submissions: I suspect that if it had been explored with both counsel in the course of the hearing, as it was before us, it would have become adequately clear that something had gone wrong. As regards the last two sentences in the passage quoted, I do not believe that the resolution of the direct discrimination issue required findings of fact about why London Allowance was withheld. The factual cause is adequately clear (see para. 59 above): what matters is how it should be characterised in law.

I would accordingly allow ground 2.

I should first consider a preliminary point raised by Ms Chudleigh. The indirect discrimination claim is raised by way of cross-appeal in the Claimant‘s Respondent‘s Notice. Ms Chudleigh submitted that we had no jurisdiction to entertain a crossappeal because neither the ET nor the EAT had made any order from which the Claimant could appeal. I do not accept that submission. The ET did in fact expressly dismiss the indirect discrimination claim, albeit in rather opaque terms (see para. 5 above); and the Claimant cross-appealed against that order in her Respondent‘s Answer in the EAT. It is true that the formal order of the EAT says nothing about the cross-appeal, but at para. 94 of his judgment Lavender J says in terms that he will not address it, and I have no doubt that as a matter of substance the EAT should be treated as having dismissed it.

The issues raised by the indirect discrimination claim fall, broadly, under three heads:

In circumstances where neither the ET nor the EAT has considered those issues at all it would not be right for us to decide them unless they turn on a pure point of law or, to the extent that they involve issues of fact or evaluation, there is only one conclusion to which the ET could properly have come: the same principles apply as in Jafri v Lincoln College [2014] EWCA Civ 449, [2014] ICR 920. On that basis, I do not believe that we can decide the first and third issues and the only proper course is to remit them to the ET. I should briefly explain why.

As to the time point, this arises because the indirect discrimination claim was first raised by way of amendment after the expiry of the primary time limit under section 123 (1) (a) of the 2010 Act (even as extended by section 140B). Permission to amend was granted on the basis that it remained open to the Commissioner to take the time point at the hearing. (Footnote: ¹¹) I think that that means that the ET would be considering the point in the context of an application for permission to amend, applying the principles most recently expounded in paras. 47-50 of my judgment in Abercrombie v AGA Rangemaster Ltd [2013] EWCA Civ 1148, [2014] ICR 209. But even if it were to be treated as an application for an extension of the primary time limit under section 123 (1) (b), the nature of the exercise would be much the same. In either case, what would be required would be an exercise of the Tribunal‘s discretion. I am prepared to say that in my view the Claimant has on the face of it a reasonable case for the grant of permission, but I cannot say that the question is so open-and-shut that the decision ought to be taken by this Court.

As to the substantive claim, Mr Leach sought to persuade us that a finding of indirect discrimination was inevitable on the basis of the facts already found, or which were undisputed on the evidence or as to which common-sense inferences could be drawn. I am not persuaded. Cases of indirect discrimination require careful findings of fact. Here the ET made no findings directed to the relevant issues, and even the written evidence and submissions which we have seen touched on the indirect discrimination pretty lightly: it was, as Ms Chudleigh put it, not regarded as the main battleground. This Court should be very cautious about making assumptions that may seem plausible but which have not been considered by the fact-finding tribunal.

I turn to the one issue which I believe that we can properly decide, which concerns the effect of section 71 of the Act. As noted above, Chapter 3 of Part 5, which comprises sections 64-80, contains a separate regime governing equality in ―terms of work‖ as between men and women. The central concepts are:

The broad scheme of Part 5 is that the rights conferred by Chapter 2 and Chapter 3 are mutually exclusive, and thus that a complaint about terms of work which discriminate between men and women can only be brought under the latter; but the demarcation lines are drawn in rather elaborate terms. They are primarily to be found in sections 70 and 71. In this case we are concerned only with section 71, which reads (so far as material):

The Commissioner contends that the Claimant‘s indirect discrimination claim is excluded by section 71. In her skeleton argument Ms Chudleigh says that the effect of the section is that section 39 (2), which is the basis of the claim (see para. 47 above), ―has no effect in relation to a claim about contractual pay‖ save in so far as it constitutes direct discrimination under section 13.

The drafting of section 71 is rather opaque and needs some unpacking. I would analyse it as follows:

I do not believe that section 71 has any application to the present case. Specifically, I do not accept that the Claimant‘s claim involves reliance on the particular kind of discrimination with which section 71 is concerned. As Mr Leach pointed out, her claim is not that she has been discriminated against ―as to [her] terms of employment‖ within the meaning of section 39 (2) (a): those terms afford her the same rights to London Allowance as a man. Rather, her claim is that the Commissioner has discriminated against her by failing to accord her her ―contractual‖ rights – that is, by acting in breach of them. As a matter of formal analysis, the relevant head of section 39 (2) is (d) – ―subjecting [her] to any other detriment‖.

I would dismiss the appeal on ground 1 but allow it on grounds 2 and 3. That means that the Claimant was entitled under the Regulations to receive London Allowance throughout the period of her maternity absence, but that its non-payment did not constitute direct sex discrimination and that she should not have been awarded compensation on that basis, either as regards the shortfall or for injury to feelings. Whether she may yet be entitled to such compensation depends on the outcome of the indirect discrimination claim.

As to that, I would allow the cross-appeal and remit the indirect discrimination claim to the ET to decide, in the first place, whether the Claimant is entitled to pursue the claim at all and, if so, whether, it is well-founded. However, I would strongly urge the parties to consider whether they cannot reach a compromise in this regard. The issue of principle about the payability of London Allowance during maternity absence has been decided. The amount at stake in the discrimination claim seems disproportionate to the costs that the parties would inevitably incur in fighting it.

I agree.

I also agree.