Chief Constable of Derbyshire Constabulary, Chief Constable of West Midlands Constabulary, & Secretary of State for Home Department v Clark & Bell;
EAT Judgment (Eady J, President) handed down 23 October 2023
Elizabeth Hodgetts, instructed by the Government Legal Department, acted for the Secretary of State for the Home Department in her successful co-appeal before the EAT, against the Judgment of the ET that it had jurisdiction pursuant to section 61 Equality Act 2010 (“EqA), to hear a claim in respect of a scheme providing for police injury benefits.
The claimants were former police officers who had suffered work-related injuries, which had subsequently led to total and permanent disablement. The claimants were not entitled to a disablement gratuity under regulation 12 of the Police Injury Benefit Regulations 2006 (“PIBR 2006”), because their respective disablements had occurred more than 12 months after they had suffered their injuries. The claimants sought to bring claims of disability discrimination before the ET challenging the 12 month rule for entitlement. Their claims were pursued under section 108, alternatively section 61 EqA; the first claimant’s claim also placed reliance on principles of European Union law.
The ET held that the claims could not be pursued under section 108 EqA, applying Ford Motor Co Ltd v Elliott and ors  ICR 711, EAT [26, 29], but did fall within its jurisdiction by means of section 61 EqA, because the regulation 12 PIBR 2006 benefit fell within the definition of an occupational pension scheme provided for by s. 212 EqA, namely that in section 1 Pension Schemes Act 1993 (“PSA”). The respondents appealed against the conclusion in relation to section 61 EqA; the claimants cross-appealed in respect of section 108.
In the EAT, Eady J (President) held:
The ET had erred in its construction of section 1 PSA. That section required that the benefit in issue should be capable of being provided “on” retirement or termination of service. First, applying the straightforward grammatical construction, section 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  ICR 744, addressing the same formulation in ETs (Extension of Jurisdiction) (England & Wales) Order 1994. However, the entitlement under regulation 12 PIBR 2006 did not crystallise upon termination: while regulation 12 PIBR required that the police officer’s service had terminated, there was no requirement for a causative connection between the injury and the termination, or the disablement and the termination, and the benefit was only payable at the point when the officer was deemed to be totally and permanently disabled by reason of a relevant injury. Second, that conclusion was supported by the legislative context, including the predecessor legislation to section 1 PSA, the historical development of the legislation providing for police injury benefits, and other formulations available in taxation and finance legislation had Parliament intended injury benefits to be included within section 1 PSA; all of which demonstrated a clear intention to treat injury benefits separately as compensation for injury.
Further, the claimants could not establish a directly effective right under EU law. The benefit in issue 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 an injury 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.
Given this conclusion, there was no need to address the further difficulty in the second claimant’s claim, arising from the fact that she presented her claim after IP completion day.
By their cross-appeal the claimants did not seek to argue that the ET had erred in its conclusion under section 108 EqA but said that supported their case under EU law and/or as to the construction of section 61 EqA; the cross-appeal was refused.
Written by Elizabeth Hodgetts