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In Commissioner of the City of London Police v Geldart, the Court of Appeal has held that failure to pay a London allowance to a police officer for her full maternity leave was not direct sex discrimination under the Equality Act 2010.

Ms Geldart is a police officer in the City of London police force. Under the Police Regulations 2003, which govern her remuneration, she was entitled to a London allowance, paid as a recruitment incentive rather than a London weighting. The police force considered that under these Regulations this allowance constituted ‘pay’ and that she was only entitled to receive it for the same 18 weeks’ period as her ordinary maternity pay. However, Ms Geldart believed that she was entitled to receive the allowance in full throughout her maternity leave and brought a sex discrimination claim.

The Employment Tribunal and EAT held that under the Police Regulations 2003, the London allowance did not constitute pay and therefore should have been paid throughout Ms Geldart’s maternity leave. Since non-payment was due to her absence on maternity leave, the Tribunal concluded that this was direct sex discrimination.

This decision has now been overturned by the Court of Appeal. The police force had genuinely misinterpreted the Regulations in treating the allowance as pay and in believing that it could be suspended during periods of absence from work, including maternity leave. The reason for not paying the allowance was therefore simply because Ms Geldart was absent from work, not because of her sex or maternity, and her claim for direct sex discrimination failed. However, the Court of Appeal remitted the case to the Employment Tribunal to consider her claim of indirect sex discrimination.

The facts of this case are specific to London police officers, but it does illustrate the need to ensure that maternity pay policies are clear and up to date, particularly as regards allowances and other additional payments. The risk of direct and indirect sex discrimination claims should always be carefully considered when drafting remuneration and leave policies.

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