Clark & Bell v Chief Constable of Derbyshire Constabulary, Chief Constable of West Midlands Constabulary, & Secretary of State for Home Department [2024] EWCA Civ 676
Underhill LJ (Vice-President), Lewis LJ, Warby LJ
Judgment handed down 19 June 2024
Introduction
The claimants, former police officers who had sustained injury resulting in permanent disablement, were each granted an injury award under reg. 11 Police Injury Benefit Regulations 2006 (“PIBR”), but refused an additional disablement gratuity under reg. 12 PIBR because disablement had not arisen within 12 months of the injury, as was required by reg. 12(1)(c) for entitlement to arise.
The issue was whether the ET had jurisdiction to hear their claims for disability discrimination arising out of the application of reg. 12(1)(c). The claimants relied on the statutory gateways of s. 61 EqA – occupational pension schemes (“OPS”) as defined by s. 212 EqA and thence by s. 1 Pension Schemes Act 1993 (“PSA”) – and/or s. 108 EqA. The first claimant also pleaded that the Framework Directive gave her a directly effective right, because the gratuity constituted pay within Art 157 TFEU. The second claimant presented her claim after IP Completion Day and did not plead EU law.
Summary
The Court of Appeal held, first, that the ET does not have jurisdiction pursuant to s. 61 EqA, because PIBR does not constitute an OPS within s. 1 PSA; but, second, that the ET has jurisdiction pursuant to s. 108 EqA.
Appellate history and reasoning in detail
ET. The ET held that PIBR constituted an OPS for s. 61 EqA purposes, because the benefits were payable “on termination” within the meaning of s. 1 PSA. It further held that the claimants could not rely on s. 108 EqA, because the alleged discrimination (the application of reg. 12(1)(c)) was not closely connected with the employment and could not have taken place during employment.
The respondents appealed in relation to s. 61 EqA, and the claimants cross-appealed in relation to s. 108 EqA.
EAT [2024] ICR 239. Eady J (President) held that the ET had erred in its construction of s. 1 PSA. Applying the straightforward grammatical construction of “on” retirement or termination, s. 1 PSA required that the entitlement to the benefit had to crystallise upon that event. That conclusion was supported by Miller Bros & FP Butler Ltd [2002] ICR 744, addressing the same formulation in ETs (Extension of Jurisdiction) (England & Wales) Order 1994. The entitlement under reg. 12 PIBR, however, did not crystallise upon termination.
Further, the claimants could not establish a directly effective right under EU law. The gratuity was not paid in consideration for work and was not directly related to the claimants’ periods of service; but was compensation for injury. As such, it could not be said to be “pay” for the purposes of the Framework Directive. As the domestic legislative and historical context suggested, it instead fell to be considered as a benefit granted under state schemes or similar, including state social security or social protection schemes, and thus coming within the exception at article 3(3)Framework Directive. It followed that there was no need to consider the additional difficulties faced by the second claimant in relying on EU law.
As to their cross-appeal on s. 108 EqA, the claimants offered no substantive argument but said that the difficulty they faced under s. 108 EqA supported their case as to the construction of s.61 EqA and under EU law. The cross-appeal was refused.
The claimants appealed, initially on the s. 61 EqA ground and EU law ground only; later applying for permission to add the s. 108 EqA ground.
Court of Appeal [2024] EWCA Civ 676
S. 61 EqA. The Court upheld the EAT Judgment on s. 61 EqA, saying:
[46] … The key word is “on”. To be a pension scheme within the meaning of section 1(5) [PSA], the scheme must provide, or be capable of providing, benefits to people “on retirement” or “on termination of service” not during, or after, or coincident with, retirement or termination of service. The occurring of one of the events specified in section 1(5)(a) to (c) must be the event, or the trigger, giving rise to the entitlement to benefits. …
[47] On analysis, regulation 12 does not provide an entitlement to benefits on retirement or on termination of service in the sense described above. A disablement gratuity is payable if all three of the conditions specified in regulation 12 are satisfied … Condition (b) requires the person to cease, or have ceased, to be a member of a police force. The regulation does not, however, require any causal connection between ceasing to be an officer and condition (a), i.e. having suffered an injury, or condition (c), i.e. becoming permanently and totally disabled within 12 months as a result (although there may in fact be a causal connection, as it is in the case of these two appellants). Furthermore, the person may already have ceased being a police officer before the injury results in permanent and total disablement and before he or she becomes entitled to the payment of a disablement gratuity. It cannot be said, therefore, that the scheme provides benefits “on retirement” or on “termination of service”. As the EAT observed at paragraph 71 of its judgment, cessation of service is a necessary but not sufficient condition of entitlement. It is not the event which triggers entitlement to the benefit.
S. 108 EqA. The Court granted permission for the s. 108 EqA ground to proceed and allowed the appeal on that ground, saying:
S. 108(1)(a): [67] … The alleged discrimination [the application of reg 12(1)(c)] does arise out of and is closely connected to the relationship that used to exist between the appellants and the chief constable of the police force in which they served. It arises out of the rules governing disability gratuities paid to former police officers in respect of injuries incurred during the execution of their duties …
S. 108(1)(b): [69] The conduct alleged here is conduct of a description constituting discrimination which would, if it occurred during the relationship, have contravened the 2010 Act. The conduct – the application of the rule … – is capable of being discrimination within the meaning of sections 15 and 19 of the 2010 Act. The conduct is of a kind which falls within the scope of Part 5, notably section 39(2), as it involves access to benefits or, possibly, subjecting the appellants to a detriment.
EU law. In consequence, the Court of Appeal found it unnecessary to determine the EU law ground.
Elizabeth Hodgetts, instructed by the Government Legal Department, represented the Secretary of State in the ET and EAT, and was led by Adam Tolley KC in the Court of Appeal. Jack Feeny, instructed by Penningtons Manche Cooper LLP, represented the claimants in the ET and EAT, and was led by Karon Monaghan KC in the Court of Appeal. Peter Lockley, instructed by the police forces’ Legal Services Departments, represented the Chief Constables throughout.
