Is failing to pay an allowance throughout maternity leave direct discrimination?
Not where the employer was mistaken as to whether the allowance comprised 'pay', held the Court of Appeal in Commissioner of the City of London Police v Geldart.
Ms Geldart is a serving police officer who is entitled to a 'London Allowance' (which is not the same as 'London Weighting') paid as a recruitment incentive. Whilst on maternity leave she only received the London Allowance to the same extent as she was entitled to ordinary maternity pay. At first instance it was held that there was no basis in the Police Regulations 2003 to reduce the London Allowance during maternity leave and consequently this was found to be direct sex discrimination.
The Court of Appeal agreed that there was no basis to reduce the London Allowance during maternity leave, but allowed the appeal against direct sex discrimination because the employer had genuinely misinterpreted the Police Regulations 2003 in treating the London Allowance as pay. Officers who are not available for work are not entitled to London Allowance. In this case, the London Allowance was not paid because Ms Geldart was absent, and the reason for the non-payment - as opposed to the reason for her absence - was not because of her sex.
A claim for indirect discrimination was remitted.
Thanks to Nicholas Kennan of Cornwall Street Barristers for preparing this case summary.