Sex discrimination in relation to maternity pay
Section 18 of the Equality Act 2010 deals specifically with pregnancy and maternity discrimination. Unlike in normal direct sex discrimination claims, a woman bringing a claim under section 18 does not need to demonstrate that she has been treated less favourably than a male comparator. This is because men cannot be pregnant or go on maternity leave.
In City of London Police v Geldart, the employee was employed as a Police Officer. She received full pay for 13 weeks, half pay for 10 weeks and then statutory maternity pay for the remainder of her maternity leave. She was entitled under her contract to a London allowance of £4338 per year. City of London Police paid the allowance at the same rates as her normal pay – this equated to the full allowance for 13 weeks, then they halved the allowance for 10 weeks and then did not pay any further allowance until she returned to work. The employee brought claims for direct sex discrimination under section 13, rather than using section 18.
The Employment Tribunal held that the police rules governing the reductions in pay for maternity leave did not apply to the allowance and upheld her claim for direct sex discrimination. The City of London Police then appealed the decision arguing, among other things, that she had brought her claim under section 13, rather than section 18, so needed to show a comparator who would have been treated more favourably in circumstances which were comparable.
The EAT agreed with the Employment Tribunal. The workplace rules regarding the allowance simply stated that London based officers would receive an allowance. The employee remained a London based Police Officer during her maternity leave and therefore remained entitled to the allowance. The EAT held that a woman on maternity leave is in a special position. If a woman is treated less favourably due to pregnancy or maternity leave, she does not need to prove that a man would have been treated differently irrespective of which section of the Equality Act 2010 she chose to rely on when bringing her claim.
For more information or further advice, contact Kimberley Clayton at 01473 298168 or email [email protected].
