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Was maternity allowance error sex discrimination?

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Commissioner of the City of London Police v Geldart

As a minimum, an employee on maternity leave is entitled to retain all her contractual benefits with the exception of pay. Sometimes an employer will provide enhanced entitlements. One practical difficulty that can apply in standard or enhanced schemes is determining whether an allowance should be treated as a benefit or as pay. In the case of Commissioner of the City of London Police v Geldart the issue was whether the employer who determines this the wrong way will be guilty of sex discrimination.

Ms Geldart claimed that failing to pay her the full London Allowance during her maternity leave amounted to sex discrimination

Whilst on maternity leave Ms Geldart, a police officer, was paid full pay for 13 weeks, half pay for ten weeks and then just statutory maternity pay for the remainder of the leave. She was entitled under the Police Regulations 2003 to a London Allowance. The force took the view that the allowance constituted ‘pay’ and agreed to include as part of her contractual maternity pay entitlement. Ms Geldart claimed that failing to pay her the allowance in full during the whole of her leave amounted to direct sex discrimination.

Decision

The Court of Appeal held that the actions of the force did not amount to direct sex discrimination. The reason that it failed to pay the allowance was the force’s mistaken belief that the allowance constituted ‘pay’ for the purposes of the Police Regulations and that the entitlement was accordingly reduced during maternity leave. Whilst Ms Geldart’s absence on maternity leave had led to the non-payment of the allowance in full this did not mean that the reason was based on sex.

Key point

The decision shows that where an employer has genuinely misinterpreted the entitlement to contractual benefits for a person who is absent it will not necessarily be found to have discriminated against them. It will not be sufficient to establish that the employer’s actions amount to sex discrimination just because the absence is for maternity leave when it was believed that any person who was not available for work would not be entitled to the allowance. 

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