Chief Constable of Derbyshire Constabulary & Ors v Clark & Anor [2023] EAT 135

Appeal and cross-appeal in relation to whether the ET has jurisdiction to hear a claim of unlawful discrimination arising out of the operation of regulation 12 of the Police Injury Benefit Regulations 2006. Appeal allowed, cross-appeal dismissed.

The Claimants were former police officers who had suffered work-related injuries, which had subsequently led to total and permanent disablement. Because their respective total and permanent disablements had occurred more than 12 months after they had suffered their injuries, the Claimants were not entitled to a disablement gratuity under regulation 12 of the Police Injury Benefit Regulations 2006 (PIBR 2006). By separate claims, the Claimants each sought to bring claims of disability discrimination before the ET in respect of the 12 month rule for entitlement under regulation 12 PIBR 2006. Their claims were pursued under section 108, alternatively section 61 of the Equality Act 2010 (EqA). The ET held that the claims could not be pursued under section 108 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 for the purposes of 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.

The EAT allowed the appeal and dismissed the cross-appeal. The ET had erred in its construction of section 1 PSA, which required (relevantly) that the benefit in issue should be provided on retirement or termination of service. While the disablement gratuity provided by regulation 12 PIBR 2006 required that the police officer’s service had ceased, that was insufficient to establish entitlement: the benefit was only payable after the cessation of service at the point when the officer was deemed to be totally and permanently disabled by reason of a relevant injury. The grammatical construction of regulation 12 PIBR 2006 was further supported by the historical and legislative context. Moreover, the Claimants could not establish a directly effective right under EU law. The benefit in issue was not paid “in consideration for work” (see article 157 of the Treaty on the Functioning of the EU) and was not directly related to the Claimants’ periods of service. As such, it could not be said to be “pay” for the purposes of the EU Directive 2000/78 (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. 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; for the reasons provided in rejecting those earlier submissions, the cross-appeal was refused.

Published: 24/10/2023 09:06

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