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10 February 2020

219: No comparator for direct sex discrimination

Under section 13 of the Equality Act 2010, direct discrimination arises where an employer treats an employee less favourably than others because of a protected characteristic. The employee is required to show that they have been treated less favourably than a real or hypothetical comparator. However, there is an exception to this requirement under section 18 of the Equality Act, which states that a woman bringing a claim for pregnancy and maternity discrimination does not need to show a comparator. The test under section 18 is whether the woman has been treated unfavourably, rather than less favourably. This exception derives from the case of Webb v EMO Air Cargo (UK) Ltd in which the ECJ held that discrimination on grounds of pregnancy is automatically discrimination on grounds of sex and since only women can be pregnant, there is no need for a male comparator.

In Commissioner of the City of London Police v Geldart, the EAT considered whether refusing to pay a police officer’s London allowance in full during her maternity leave amounted to direct sex discrimination under section 13 of the Equality Act.

Ms Geldart worked as a police officer in the City of London Police. During her maternity leave, in accordance with the force’s maternity policy, she received full pay for 13 weeks, half pay for ten weeks and then statutory maternity pay for the rest of her leave. Ms Geldart was entitled under the Police Regulations 2003 to a London allowance of £4,338 per annum which was paid as a recruitment incentive to all London officers. During her maternity leave, this allowance was paid at the same rate as her maternity pay: the full allowance for 13 weeks, half for ten weeks, then no allowance until her return to work. She brought a claim alleging that failure to pay the London allowance in full throughout her maternity leave amounted to direct sex discrimination under section 13 of the Equality Act 2010.

The Employment Tribunal upheld Ms Geldart’s claim, ruling that the provisions of the Police Regulations which reduced her entitlement to pay during maternity leave did not apply to the London allowance. She was therefore entitled to the London allowance in full throughout her maternity leave, and the force’s refusal to pay the allowance amounted to direct sex discrimination.

The City of London Police appealed to the EAT, arguing that since Ms Geldart had brought her direct sex discrimination claim under section 13, she was required to show a comparator who would have been treated more favourably in comparable circumstances. The force also argued that Ms Geldart had not been entitled to receive the London allowance at all during her maternity leave. These arguments were rejected by the EAT. Unlike other allowances provided for under the Police Regulations, the London allowance was expressed as an entitlement for all London police officers and therefore had to be paid in full during maternity leave. In addition, the Employment Tribunal had correctly applied the Webb principle that a woman who has suffered discrimination on grounds of pregnancy and maternity does not need to prove that a man would have been treated differently.

The EAT’s judgment confirms that the Webb principle also applies to a claim of sex discrimination under section 13 of the Equality Act, even though section 18 makes specific provision for pregnancy and maternity discrimination. This means that a claimant who has been treated unfavourably on the ground of pregnancy or maternity is a victim of sex discrimination and does not need to prove that a man would have been treated differently, regardless of whether they rely on section 13 or section 18 when bringing their claim. This case also highlights the need to ensure that allowances are paid appropriately to employees on maternity leave. It is worth noting that in addition to the underpaid allowance, Ms Geldart was awarded £4,000 as compensation for injury to feelings.

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