Mrs E Parry v The Secretary of State for Health and Social Care: 6001736/2024

EMPLOYMENT TRIBUNALS

Case No 6001736/2024

Between

Mrs E ParryClaimant

The Secretary of State for Health and Social CareRespondent

Before

Employment Judge Brain

In person for claimant

Adam Tolley KC for respondent

Date 12 May 2025

JUDGMENT

The judgment of the Employment Tribunal is that the claimant’s complaints of discrimination brought pursuant to the Equality Act 2010 fail and stand dismissed.

REASONS

[1]The hearing of this case concluded at around 12.20 pm on 16 April 2025. This was the second day of a three days’ listing.

[2]To set the scene, the Tribunal borrows from Mr Tolly’s skeleton argument (in paragraph 1) that “This claim raises a short but substantively complex point about alleged sex and/maternity discrimination in relation to a particular provision of the Civil Service Compensation Scheme (the “CSCS” or the “Scheme”). It concerns the treatment of unpaid maternity leave of any kind (compulsory, ordinary or additional). The CSCS treats such unpaid leave in the same way as any other kind of unpaid leave viz. such leave is not taken into account for the purposes of calculating the amount of the compensation payable [under the Scheme].”

[3]Given the importance of the matter to the parties, the Tribunal directed at the conclusion of the hearing on 16 April 2025 that judgment shall be reserved. The Tribunal now gives reasons for the judgment reached. 10.5 Reserved judgment with reasons – rule 61 1 March 2017

[4]The case benefited from a case management hearing. This came before Employment Judge Ayre on 6 December 2024. The claimant represented herself. Mr Tolly represented the respondent. The record of the preliminary hearing is at pages 37 to 43 of the hearing bundle.

[5]In paragraph 2 of her record of the preliminary hearing, Employment Judge Ayre summarised the matter as follows: “The claim is about the calculation of the payment made to the claimant when she left the respondent’s employment under a voluntary exit scheme. The claimant complains that, when calculating her voluntary exit compensation, the respondent failed to take account of periods when she was on unpaid compulsory, ordinary and additional maternity leave.” She then summaries the respondent’s position (in paragraph 3 of the record). This is: “That the calculation of the claimant’s ‘reckonable service’ under the CSCS was correct, that the periods of leave referred to by the claimant were all periods of unpaid leave, and that unpaid leave does not count as reckonable service under the CSCS.”

[6]Employment Judge Ayre then set out the issues in the case in paragraph 39 of the preliminary hearing record. For convenience these are set out here:39.1 Is the Civil Service Compensation Scheme 2010 an occupational pension scheme for the purposes of section 75 of the Equality Act 2010?

39.2 Did the respondent discriminate against the claimant, either contrary to section 39(2) or section 75 of the Equality Act 2010 by treating periods of unpaid compulsory maternity leave as non-reckonable service for the purpose of payment of compensation for voluntary exit under the Civil Service Compensation Scheme Rules?

39.3 Did the respondent discriminate against the claimant, either contrary to section 39(2) or section 75 of the Equality Act 2010 by treating periods of unpaid ordinary maternity leave as non-reckonable service for the purpose of payment of compensation for voluntary exit under the Civil Service Compensation Scheme Rules?

39.4 If the Civil Service Compensation Scheme 2020 is an occupational pension scheme for the purposes of section 75 of the Equality Act 2010, did the respondent discriminate against the claimant, either contrary to section 39(2) or section 75 of the Equality Act 2010 by treating periods of unpaid additional maternity leave as non-reckonable service for the purpose of payment of compensation for voluntary exit under the Civil Service Compensation Scheme Rules?

[7]Employment Judge Ayre directed that issues relating to remedy will be dealt with at a separate remedy hearing if required. Given the Tribunal’s finding, no remedy hearing needs to be listed. 10.5 Reserved judgment with reasons – rule 61 2 March 2017

[8]The Tribunal was presented with: 8.1. A hearing bundle of 1094 pages. 8.2. A witness statement bundle. 8.3. Helpful skeleton arguments presented both by the claimant and Mr Tolley. 8.4. A bundle of statutory and case law authorities.

[9]There were no significant factual disputes. Mr Tolley had no cross-examination for the claimant (although he reserved the respondent’s position upon those passages within her witness statement dealing with remedy issues). The claimant had some short cross-examination for the respondent’s witnesses, Tom Walker and Peter Spain.

[10]The Tribunal shall go into some detail about the factual basis of the claimant’s claim below (in paragraphs 22 to 87). However, the essential facts are now summarised in this introduction.

[11]The claimant worked for the respondent between 1 November 2011 and 28 March 2024. She commenced work with the respondent as the policy manager within the Social Care, Local Government and Care Partnerships Directorate. At the end of her employment, she held the position of Head of LongTerm Conditions and End of Life Care Policy. Her employment with the respondent ended on 28 March 2024 because of a voluntary exit pursuant to the CSCS.

[12]Mr Walker was employed by the respondent as a Deputy Director – Human Resources. He is currently employed by HM Revenue and Customs. He was the decision manager upon a grievance raised by the claimant dated 7 December 2023.

[13]Mr Spain is employed as Head of the Pensions Policy and Technical Team in the Civil Service and Royal Mail Pensions Directorate in the Cabinet Office which manages the civil services’ arrangements for retirement pensions and compensation benefits payable on early retirement. Mr Spain has around 30 years of experience of the operation of the civil service pension and compensation schemes. He has expertise in this area derived from his 30 years of experience and his knowledge of the history of the schemes.

[14]On 8 June 2023 the claimant applied for a voluntary exit under the voluntary exit scheme which was running at the time and in which she was eligible to participate. On 26 July 2023 she was informed that her application was successful.

[15]During her employment with the respondent the claimant took three periods of maternity leave. These were between:(a) 13 July 2012 and 28 April 2013.

(b) 28 April 2016 and 17 April 2017.

[16]In the first period of maternity leave, the claimant took two weeks compulsory unpaid maternity leave, 26 weeks ordinary unpaid maternity leave and 15 weeks unpaid additional maternity leave. The claimant was in receipt of Maternity 10.5 Reserved judgment with reasons – rule 61 3 March 2017 Allowance (a state benefit payable not by her employer but by the Department of Work and Pensions) for this period.

[17]Over the second period of maternity leave, she took 26 weeks of contractual paid maternity leave, 13 weeks of paid additional maternity leave, and 11 weeks and five days of additional maternity leave (which was unpaid).

[18]For the third period of maternity leave, she took 26 weeks of contractual paid maternity leave, 13 weeks of paid additional paid maternity leave and then one week of additional unpaid maternity leave (for the week between 27 November and 3 December 2023).

[19]In summary therefore, each maternity leave period taken by the claimant had within it periods for which the claimant was unpaid by the respondent. During the first period of maternity leave, this was the whole of the maternity leave period. During the second period, it was between 26 January 2017 and 17 April 2017. During the third period it was between 27 November and 3 December 2023.

[20]In calculating her entitlement to compensation under the voluntary exit scheme, the respondent discounted from the period of reckonable service the days during which the claimant received no remuneration from the respondent while she was on maternity leave. These periods in which she received no remuneration are referred to from time-to-time as “the disputed periods.”

[21]As the disputed periods were all while the claimant was on maternity leave (compulsory, ordinary or additional maternity leave as the case may be) she complains of discrimination related to the protected characteristics of sex and of pregnancy and maternity. The respondent’s case is that the disputed periods do not count as periods of reckonable service under the CSCS whether the unpaid leave is a form of maternity leave or otherwise. All periods of unpaid leave are treated in the same way and therefore involve no unlawful discrimination.

Findings of fact

[22]Having set the scene, the Tribunal now go on to make factual findings. Most of this will be taken from the claimant’s witness statement. After the claimant had taken an oath and confirmed her statement, Mr Tolley confirmed that the respondent had no cross-examination for her upon it (subject to the reservation of the respondent’s position on remedy). Mr Walker and Mr Spain’s evidence shall also be referred to where appropriate. (The claimant did have some limited cross-examination of them).

[23]There being no challenge to the claimant’s factual account, the Tribunal refers to the relevant passages from her witness statement which shall stand as factual findings.

[24]Shortly after commencing her employment with the respondent, the claimant discovered that she was pregnant with her first baby. She informed her manager a few weeks later - (paragraph 2 of the claimant’s witness statement). The claimant says that she was informed that due to the timing of her pregnancy she would not be eligible for occupational maternity pay or statutory maternity pay in line with the respondent’s maternity policy (pages 978 to 993) – (paragraph 3 of the claimant’s witness statement).

[25]Pausing there, the maternity leave policy at pages 978 to 993 referred to by the claimant in paragraph 3 of her witness statement is that which was current in 2011, that being the time that she was pregnant with her first child. Clause 24 on 10.5 Reserved judgment with reasons – rule 61 4 March 2017 page 985 provides that an entitlement to statutory maternity pay (‘SMP’) arises where the employee has been continuously employed in the civil service for at least 26 weeks by the fifteenth week before the expected week of childbirth. There are then set out a further five conditions for entitlement to SMP which need not be recited here.

[26]Clause 26 provides that statutory maternity pay is payable for a maximum of 39 weeks and (by clause 29) is paid at the rate of 90% of earnings for the first six weeks and for the remaining 33 weeks at the lesser of the “standard flat rate” or 90% of normal weekly earnings.

[27]A more generous contractual entitlement is provided for in part 1 of the maternity leave policy. This provides for 26 weeks of maternity leave on full pay with a subsequent 13 weeks paid at SMP rates. This entitlement is dependent upon having completed at least one year’s service within the civil service otherwise the woman may qualify for SMP or maternity allowance as the case may be – maternity allowance being payable where she does not qualify for SMP.

[28]Clause 37 provides that, “If your expected week of childbirth began on or after 5 October 2008 [as was the case here] your contract of employment continues as normal and you are entitled to the same employment benefits during your ordinary maternity leave (ie the first 26 weeks) and your additional maternity leave (ie the paid 13 weeks and the unpaid 13 weeks) which would have accrued had you been at work, except for remuneration in the case of unpaid leave.”

[29]Upon the question of returning to work, the maternity leave policy provides (at clause 34) that the woman “may return to work before the end of your maternity leave period, apart from during the two weeks following the birth. This is however subject to you giving at least 28 days’ written notice of the day you intend to return to work.” A form is then provided for the employee to use when exercising this righ

[30]The claimant commenced her employment with the respondent on 1 November 2011. The baby was due on 15 July 2012. In the circumstances, the claimant did not have sufficient continuity of service to be entitled to contractual or statutory maternity pay during her first period of maternity leave. The entire period of maternity leave between 13 July 2012 and 28 April 2013 was therefore unpaid and discounted by the respondent in their computation of the claimant’s reckonable service when they computed the amount of the severance payment.

[31]The claimant was entitled to and claimed maternity allowance for the duration of her first period of maternity leave. This being the case, the claimant says in paragraph 8 of her witness statement that pursuant to clause 23 of the maternity leave policy, this is deemed to be a period of paid leave. This is correct on the face of the document and is a point to which the Tribunal will return to in paragraphs 58 and 59 below.

[32]The claimant commenced her second period of maternity leave on 27 April 2016. This was taken unexpectedly early as the baby arrived prematurely, two months early (paragraph 13 of the claimant’s witness statement). The claimant returned to work on 18 April 2017. The maternity leave policy current at the time of the first maternity leave period had been revised. There were in fact two revisions covering the claimant’s second period of maternity leave. The one dated March 2015 is in the bundle at pages 941 to 951. The one dated June 2016 is at pages 952 to 962. 10.5 Reserved judgment with reasons – rule 61 5 March 2017

[33]The Tribunal has compared the three policies. It appears that there are no material differences between them as to the provisions relevant to the case. At any rate, the Tribunal’s attention was not drawn to any such differences or amendments.

[34]By the time of her second pregnancy, the claimant had of course accrued more than one year of service with the respondent. She therefore was eligible for 26 weeks of full pay and 13 weeks of statutory maternity pay. She then took 11 weeks of unpaid leave during the additional maternity leave period.

[35]After returning to work following the end of her second period of maternity leave, the claimant successfully progressed her career. As she puts it in paragraph 20 of her witness statement, “Later in 2022, I fell pregnant with my third son, and he was born on 26 February 2023.” Her maternity leave for her third pregnancy commenced on 27 February 2023.

[36]The relevant maternity leave policy is at pages 449 to 463. This policy contains substantial revisions of those applicable for her first two periods of maternity leave. However, there were no significant amendments of relevance to the issues in the case. At any rate, the Tribunal was not taken to anything of significance. The claimant again exercised her right to receive 26 weeks of full pay and 13 weeks of statutory maternity pay for her third period of statutory maternity leave. In the event, as we have seen, the claimant took one week’s unpaid additional maternity leave between 27 November 2023 and 3 December 2023.

[37]During her third period of maternity leave, it was drawn to the claimant’s attention by her line manager Helen Causley that the respondent had launched a Voluntary Exit Scheme (from time to time abbreviated to ‘VES’) on 19 May 2023. Helen Causley’s email is at page 1006. She shared with the claimant the scheme’s guidance dated May 2023 which is at pages 994 to 1005. After the introduction the voluntary exit scheme says (in paragraph 2.1 at page 996) that such schemes are “a way for departments to reduce overall head count by providing an opportunity for individuals to apply to exit the civil service in return for a financial compensation package.” At paragraph 2.2, it is provided that the scheme was open to all permanent employees of the Department for Health and Social Care with at least two years’ reckonable service within the civil service at the date of the Voluntary Exit Scheme launch.

[38]The timetable is in paragraph 3.1 (page 997). The Voluntary Exit Scheme launched on 18 May 2023 with a closing date for applications of 9 June 2023.

[39]Section 10 of the Voluntary Exit Scheme (at page 1003) is entitled ‘Voluntary Exit Tariff and Terms.’ It reads: “10.1 Voluntary exit terms are regulated by the Civil Service Compensation Scheme (CSCS). DHSC [the respondent] has decided to offer voluntary exits with a tariff of one month’s salary per year of service, up to a maximum of 21 months (six months’ salary for those over pension scheme age), with payments capped at £95,000. The minimum tariff is two months’ salary. The tariff will be the same for all employees of DHSC, regardless of an individual’s terms and conditions. 10.2 Employer funded pension top up for those applying before pension age will not apply. If your pension scheme has provision for early access to your pension or you are near to pension age, then please refer to the FAQs for more information.” 10.5 Reserved judgment with reasons – rule 61 6 March 2017

[40]For personal reasons which need not be set out in any detail, the claimant decided to apply. Her application for the respondent’s Voluntary Exit Scheme was acknowledged on 15 June 2023 (page 50). She was notified by Helen Causley that her application had been successful (pages 55 to 57). The letter read that “The VES operations team will now work with MyCSP to prepare your full offer paperwork, including your exit payment quote and pension options.”

[41]It may be helpful to interpose at this stage passages from Mr Spain’s witness statement. These were not challenged by the claimant and therefore, again, shall be taken as factual findings. Mr Spain gave evidence as follows. “Voluntary Exit:26. VE [voluntary exit] can be offered in the interests of workforce efficiency and where departments wish to reduce staff numbers, to support organisational changes, address promotion blockages and where there is limited efficiency. There is no compulsion on individuals to accept the offer; it is an agreement between the department and the employee.

27. Departments can therefore choose to run a VE scheme before commencing formal consultation on compulsory redundancy, therefore having some discretion on the terms of the offer. Any such scheme requires Cabinet Office approval before departments embark on consultation. Whilst each department, ie DHSC in this case, makes the compensation payment to their employees on their last day of service, it is not for them to produce compensation to its employees. My Civil Service Pensions (“MyCSP”) is the scheme administrator who apply the CSCS rules and associated guidance (at pages 318 to 421 and 422 to 448) to arrive at a calculation of compensation payable.”

[42]When the claimant made her application under the Voluntary Exit Scheme, her salary was £63,964 per annum. Her last date of service was projected to be 30 November 2023. The quote that she was given was in the sum of £61,627.28 (page 66).

[43]The claimant was expecting to receive a quote of just over £64,000. The Tribunal shall look at the scheme in a little more detail later, but the claimant’s expectation was based upon the application by the respondent of what is referred to as the “standard tariff” terms from the Voluntary Exit Scheme. The standard tariff payable is the lesser of the amount calculated by determining the length of the employee’s reckonable service and then multiplying 1/12th of their pay by the length of that reckonable service and the “voluntary departure maximum”.

[44]The claimant was below that maximum. Accordingly, by application of the formula, she was expecting to receive one month’s salary for every year of service. The respondent taking out of account the periods of unpaid leave taken by the claimant during her three periods of maternity leave had the effect of reducing the multiplier (that is, the periods of reckonable service) to which the multiplicand (her monthly salary) was applied. This had the consequence of her being quoted a lower figure than that which she had been expecting.

[45]The claimant raised questioned how the VES compensation had been calculated. She received a response on 25 August 2023 from the VES operations team (page 89). They referred the matter to MyCSP. However, she was told by the VES operations team that, “regarding your maternity leave, if you took any unpaid leave then this would not count towards your reckonable service for the purposes of VES.” 10.5 Reserved judgment with reasons – rule 61 7 March 2017

[46]On 18 October 2023 the claimant was informed by the VES operations team that a response had been received from MyCSP (page 105). This was to the effect that “paid and statutory maternity leave are both reckonable. Only unpaid maternity leave is non-reckonable.” The email went on to record that MyCSP “holds the following dates as unpaid, non-reckonable maternity leave: 11/1/13 – 28/4/13 [and] 26/1/17 – 17/4/17”. (It should be observed that the explanation at page 105 is not as clear as it should be. The expression ‘paid and statutory maternity leave’ could include the unpaid maternity leave period. That said, the second sentence does resolve that ambiguity in the first sentence).

[47]On 20 October 2023, the claimant questioned the response from MyCSP (page 108). She also pointed out the inaccuracy of the earlier dates and that she was on unpaid maternity leave from 13 July 2012 to 10 January 2013 (as well as from 11 January 2013 to 28 April 2013).

[48]The claimant was then being pressed to submit her leaver’s form by 6 November 2023. She had received a reminder that this was outstanding on 24 October 2023 (page 110). By this stage, Helen Causley had left the department. On 1 November 2023 the claimant asked Ed Scully, director of primary and community care, to act as her line manager for the VES process (page 115). He agreed to take on this role.

[49]Unsurprisingly, the claimant was becoming stressed and anxious. The end of her third maternity leave period was by this stage only around a month away. She had not put in hand arrangements for childcare should she decide to return to work after all.

[50]On 7 November 2023 the claimant was informed by the VES operations team of a discrepancy in data “between what MyCSP hold and what is held on D365 … based on the current timescales it is unlikely that your last day of service of 30 November will be delayed, however payment is likely to be delayed until December if you choose to accept as our payroll deadline is Monday 13th [November] and we think it’s unlikely a decision will have been made by then.” (page 123). The claimant responded the same day (page 125) to ask whether she may be able to take annual leave to facilitate a later leaving date.

[51]On 8 November 2023, the claimant received an updated quote from the VES operations team (page 126). The amount of compensation was reduced to £58,784.20. The lower quotation took into account the earlier period of unpaid maternity leave which had been left out of account from the quote of 21 July 2023. The revised quote of 8 November 2023 had been produced after the claimant pointed out the inaccuracy in the respondent’s records. In the covering email (at pages 124-125) the claimant was asked to confirm her acceptance by 29 November 2023. Should she accept, then the last day of service would be 30 November 2023.

[52]In paragraph 39 of her witness statement the claimant says that she remained unsure how the figure had been calculated and that she “felt like I was being rushed into making an important decision, particularly with the date for leaving being the day after the decision was due.” She also mentions in paragraph 35 of her witness statement having sought advice from ACAS who told her that “to reduce a compensation payment as a result of having previously taken maternity leave could equate to maternity discrimination, which is protected under the Equality Act. They further advised that I should consider if it could be considered sex discrimination if any of the aspects of the treatment would affect only women.” 10.5 Reserved judgment with reasons – rule 61 8 March 2017 In the circumstances, it is entirely credible that the claimant was unsettled, and stressed to the point where (as she recounts) her sleep was affected.

[53]On 16 November 2023, the claimant again questioned the calculation and relayed the advice which she had been given by ACAS (page 150). She said, “this may be both unlawful discrimination on the grounds of pregnancy/maternity and/or sex and could also be a breach of contract.” She then quoted from the respondent’s maternity policy that says, “You are entitled to receive all contractual entitlements during the first 26 weeks of maternity leave, apart from remuneration. Pregnant employees expecting a child after 5 October 2008 will receive the same contractual entitlement for the last 26 weeks as they do during the first 26 weeks, except pay.”

[54]On 16 November 2023 Laura Robinson of VES operations team emailed the claimant (page 152). She stood by the calculation sent to the claimant on 8 November 2023. She said, “I can confirm that the reckonable service used for the purposes of calculating voluntary exit compensation is defined by the Civil Service Compensation Scheme rules rather than the departmental maternity leave policy. The rules define which service qualifies as reckonable service and outline that any periods of leave where an individual is in receipt of departmental maternity pay or statutory maternity pay count as full time service so long as the individual was full time before going on maternity leave. It counts as full time reckonable service for both the purposes of calculating pension benefits and compensation. Any periods of leave where an individual is not in receipt of maternity pay do not count as reckonable service.” Laura Robinson then went on to confirm that if the claimant was unable to confirm her decision by 29 November 2023 an extension could be accommodated whereby the claimant would be able to take unused annual leave.

[55]In paragraph 42 of her witness statement, the claimant correctly points out that there is an inaccuracy in Laura Robinson’s email of 16 November 2023. This is because in the CSCS rules, all unpaid leave is (by Rule 12.1.4(2)) discounted from the definition of reckonable service Rule 12.1.4.(1). The periods of service excluded from reckonable service is not confined to unpaid maternity leave (which is not specifically mentioned). The excluded periods are periods of unpaid leave, unpaid sickness absence, and any period where an individual receives sick pay at pension rate – pension rate is defined in Rule 12.1.1. It need not be set out here as it did not apply to the claimant.

[56]This position may be contrasted with the definition of “Pay” in Rule 12.1.2 where specific mention is made of maternity leave and maternity pay. (In sum, Rule 12.1.2 provides that if an individual is on ordinary maternity leave and/or in receipt of maternity pay on the last day of their reckonable service for the purposes of the computation of the severance payment, then the individual will be credited with their usual pay for the purposes of the calculation of the multiplicand. (This is referred to as ‘Assumed Pay’ in Rule 12.1.2(2) and (3). Other kinds of leave than maternity leave also is listed in Rule 12.1.2(3) whereby the employee will be credited with Assumed Pay as the multiplicand).

[57]In paragraph 44 of her witness statement, the claimant draws attention to the Civil Service Compensation Scheme – Guidance for Employers (pages 422 to 448 of the bundle). This stipulates at page 436 that current reckonable service excludes unpaid maternity leave. The claimant complains in paragraph 44 that, “There is no further definition within this guidance of what periods of maternity leave are 10.5 Reserved judgment with reasons – rule 61 9 March 2017 considered paid vs.unpaid.” The point the claimant is driving at (if the Tribunal understands this aspect of her evidence correctly) is that no distinction is drawn between contractual maternity pay and statutory maternity pay.

[58]The respondent’s answer to that may be found in the passage at page 985 (being part of the Maternity Leave Policy published in March 2008 and updated in October 2011) to which the Tribunal has referred already. (The same passage may be found in the other two relevant iterations of the Maternity Leave Policy – (see pages 948 and 959)). By way of reminder, about statutory entitlement the Maternity Leave Policy provides that, “The first 39 weeks is normally paid leave, either in the form of statutory maternity pay (SMP), subject to length of service, or maternity allowance which is paid by the Department of Work and Pensions offices.” This was less than optimal wording as it conflates statutory maternity allowance (which is a welfare benefit available to a woman who does not qualify for statutory maternity pay) with statutory maternity pay.

[59]The message sought to be conveyed (perhaps unsuccessfully) by the wording of the Maternity Leave Policy is that the respondent views statutory maternity pay made by the respondent (as opposed to the DWP) as pay for the purposes of the computation of reckonable service. The claimant is right to point out that further guidance is perhaps desirable as to what periods of maternity leave are deemed paid and unpaid. However, the respondent’s position is that the periods during which Maternity Allowance is paid are viewed as unpaid periods by the respondent for the purposes of the CSCS and their maternity policy.

[60]On 22 November 2023, the claimant was notified that the revised quote issued to her on 8 November 2023 was incorrect. The claimant emailed Mr Scully on 23 November 2023 to inform him of the position. He acknowledged her email the next day sympathising that “this all sounds really stressful.” The Tribunal refers to page 1008. The suggestion was made by the respondent that the claimant should have until 14 December 2023 to decide whether to accept the voluntary exit compensation offer.

[61]On 7 December 2023, the claimant raised a grievance (pages 205 to 209). Her grievance was that the three periods of unpaid maternity leave (13 July 2012 to 28 April 2013, 26 January 2017 to 17 April 2017, and 27 November 2023 to 30 November 2023) were non-reckonable for the purposes of the calculation of voluntary exit compensation. (The third period was in the event to 3 December 2023). She complained that this was “unlawful discrimination on the basis of pregnancy and maternity, as if I had not taken maternity leave for these periods my service would have been considered reckonable and I would have been offered an increased exit payment.” She went on to say that “the first period of maternity leave being considered non-reckonable includes a period of compulsory maternity leave, this may also be sex discrimination as only women are required legally to take this leave.”

[62]The claimant’s grievance was acknowledged on 8 December 2023 (page 211). A suggestion was made of extending the claimant’s service to 29 December 2023 (from 15 December 2023) to provide for enough time to conduct the investigation.

[63]As Mr Walker says in paragraph 5 of his witness statement, “I was the decision manager relating to Mrs Parry’s grievance filed on 7 December 2023 (pages 205 to 210). This grievance was investigated by Rebecca Taylor (head of HR data and strategic workforce planning) … prior to being referred to me to arrive at a decision.” 10.5 Reserved judgment with reasons – rule 61 10 March 2017

[64]On 21 December 2023, an agreement was reached for the claimant’s last day of service to be extended to 31 January 2024 (page 216). This email also records arrangements being made to enable the claimant to meet with Rebecca Taylor.

[65]The claimant met with Rebecca Taylor on 29 December 2023 (notes of the Teams call are in the bundle at pages 219 and 220).

[66]On 6 February 2024 the claimant emailed to chase progress with the grievance (page 249). A further extension to her leaving date had been agreed. The claimant was becoming concerned that she had by now almost exhausted her annual leave entitlement. Arrangements were made to remove the claimant on to unpaid special leave (page 257). In agreeing to this and the revised compensation figure, the claimant reserved her rights to pursue matters before the Tribunal (page 253).

[67]Mr Walker explains progress with the claimant’s grievance from paragraph 12 of his witness statement. Terms of reference in Miss Taylor’s investigation were agreed so that Miss Taylor could commence her investigation. The terms of reference were: “Whether the VE compensation quote had been calculated in accordance with the CSC rules; and Whether the CSCS rules unfairly impacted individuals who took unpaid maternity leave.”

[68]Miss Taylor completed her investigation on 23 January 2024 (paragraph 15 of Mr Walker’s witness statement). He refers to Rebecca Taylor’s investigation summary (pages 237 to 248) together with supporting documentation at pages 219 to 233. Amongst these was a third quote issued to the claimant on 27 November 2023 of £61,470.13.

[69]Amongst the issues investigated by Rebecca Taylor was the different treatment of unpaid maternity leave as between the CSCS on the one hand and the pension scheme (known as the Principle Civil Service Pension Scheme) (“the PCSPS”) on the other. This was a point raised by the claimant in her email of 28 November 2023 (page 160) in which she posed a question of whether the unpaid maternity leave periods were taken out of account for the compensation of reckonable service in the PCSPS as well as the CSCS. Miss Taylor investigated this matter. Her understanding was that periods of ordinary maternity leave (paid or unpaid) are considered for the purposes of the PCSPS, but that this was not the case for the CSCS where unpaid maternity leave is not included in reckonable service. Her understanding was confirmed by a senior pensions administrator on 28 December 2023 (page 221).

[70]That Miss Taylor’s understanding was correct is also confirmed by Mr Spain’s evidence. He says in paragraph 42 of his witness statement that, “There is a difference in approach between the CSCS and the various iterations of the PCSPS and CSOPS [The Civil Servants (and Others) Pension Scheme]. In short, the CSCS treats periods of unpaid absence, whether on maternity leave or otherwise, as excluded from the calculation of reckonable service for the purpose of determining compensation payable. Only periods of paid employment are counted for this purpose. However, various iterations of the PCSPS and the CSOPS, for the purpose of determining pension benefits, treat pension as continuing to accrue during certain periods of maternity related absence, whether or not paid.” 10.5 Reserved judgment with reasons – rule 61 11 March 2017

[71]It is right to say that the position is not that straightforward. Mr Spain goes on to clarify (also in paragraph 42) that, “Pension continues to accrue in such circumstances under CSOPS and the 2007 section of the PCSPS (Nuvos) (the pension schemes that Mrs Parry was a member of) but they are career average schemes and do not therefore need to include (and do not include) the concept of reckonable service. A more direct comparison is provided by the 1972 section of the PCSPS (Classic) which treats OML, whether paid or unpaid, as reckonable service (see Rule 2.10B at page 614)”.

[72]He then goes on in paragraph 43 to say, “As such, these PCSPS provisions are in one material respect more generous than the CSCS. In particular, a period on unpaid OML will count as reckonable service under the Classic version of the PCSPS but will not so count for the purposes of the CSCS. However, a period on unpaid AML does not count as reckonable service under either scheme” [emphasis added by the Tribunal].

[73]Rebecca Taylor’s understanding (as she wrote on 28 December 2023 at page 221) was therefore correct about the difference in treatment between the pension scheme and the VE scheme with reference to ordinary maternity leave. (Her email did not address the question of additional maternity leave which, as Mr Spain says, does not count as reckonable service under either scheme where any element of it is unpaid.

[74]Mr Walker sent to the claimant his decision on her grievance on 13 February 2024 (pages 258 to 260). He said: “My decision is to not uphold the grievance you have raised in relation to the value of your VES payment. The reason for the decision is that the statutory Civil Service Compensation Scheme (CSCS) rules and associated guidance, which sets out the level of compensation that departments can pay civil servants if they leave under voluntary exits and what is included in ‘reckonable service’ specifically excludes unpaid maternity leave from the definition of reckonable service (Annexe 6F CSCS 2010 Guidance for Employers – Section 5 – ‘scheme definitions and miscellaneous information).’ DHSC has considered the relevant periods of unpaid maternity leave as nonreckonable, and therefore the value of your VES payment has been calculated correctly in relation to this, in accordance with the CSC rules. Finally, I do not believe the department has acted in a discriminatory manner in this instance. This is because it has correctly followed and complied with the rules of a statutory compensation scheme, meaning that the decision it has reached is objectively justified on this basis. You have the right to appeal against procedural errors, and/or decisions where new evidence has been raised that may change the outcome of the original decision.” Mr Walker then went on to give the claimant details of to whom any appeal should be sent. The claimant did not exercise her right of appeal.

[75]A final day of service of 28 March 2024 was agreed upon. (This was delayed for what had been agreed earlier due to the claimant suffering a period of ill health and also she was as acting as witness for the respondent in an unrelated hearing before the Employment Tribunal). 10.5 Reserved judgment with reasons – rule 61 12 March 2017

[76]The claimant received the sum of £62,782.46 on 30 April 2024. The claimant calculates that were the periods of unpaid maternity leave to be included it ought to have been higher by £7,065.72. (There will be some slight adjustment to this as the claimant received £152.63 in May 2024 and a further £91.90 on 30 April 2025 to take account of her keeping in touch days which the respondent accepts should have been included in the calculation of reckonable service).

[77]In paragraph 85 of her witness statement, the claimant says that Rebecca Taylor’s investigation report was not sent to her when Mr Walker informed her of his decision. Miss Taylor recorded (at page 238) that under the Equality Act 2010 “It is unlawful for an employer to discriminate against a woman because she is pregnant or [has] recently given birth. The protection against pregnancy discrimination lasts for a significant period of time from when the individual becomes pregnant to when maternity leave finishes. It therefore does not appear to apply in this case.” Miss Taylor then goes on to deal with the concepts of direct discrimination and indirect discrimination and concludes that the latter may be engaged as “it could be argued that the exclusion of unpaid maternity leave is indirect discrimination because it has a disproportionate impact on women taking maternity leave. However, providing the department has followed the scheme rules, this would provide objective justification.”

[78]The Tribunal is not concerned with an indirect discrimination claim in this case. It is not in the list of issues recorded by Employment Judge Ayre. The claimant is right to point out that her complaint is not about unfavourable treatment because of pregnancy during the protected period but, rather, about unfavourable treatment because she had exercised her right to ordinary and/or additional maternity leave. To that extent, the claimant is correct in her assertion that Miss Taylor’s approach was flawed.

[79]However, the terms of reference (referred to in paragraph 13 and Mr Walker’s witness statement) focus upon the correct issue of whether the CSCS rules unfairly impact individuals who take unpaid maternity leave. That was the issue addressed by Mr Walker when he made his decision. His conclusion (at pages 259 and 260) focuses upon the correct issue. No question arose of any unfavourable treatment of the claimant because of any of her pregnancies or any illnesses suffered by her because of them.

[80]It is helpful now to look at Mr Spain’s evidence for some historical context and background to the CSCS (with which we are principally concerned) and the other schemes.

[81]The salient evidence which he gives in his witness statement is now set out. Quite properly, none of this was challenged (or realistically could be challenged) by the claimant and therefore shall be treated by the Tribunal as factual findings: “(4) The Cabinet Office manages the civil service’s arrangements for both retirement pensions and compensation benefits payable on early termination of employment. (5) The ‘Principal Civil Service Pension Scheme (“the PCSPS”) and the Civil Servants (and Others) Pension Scheme (“CSOPS”) are the occupational pension schemes for the civil service. (6) The civil service compensation scheme (“the CSCS” or “the scheme”) applies to staff in an employment covered by the civil service pension and compensation arrangements. 10.5 Reserved judgment with reasons – rule 61 13 March 2017 (7) The PCSPS and the CSCS are statutory schemes made under the Superannuation Act 1972 (“The Act”), and CSOPS was established by regulations made under the Public Service Pensions Act 2013 – and they apply to government departments and agencies (and other specified bodies). Within this framework, we seek to ensure that the rules of the various schemes continue to meet the developing needs of the civil service as an employer. We consult with the civil service unions on any changes to the rules of the schemes, as required by the Acts concerned and pursuant to maintaining good industrial relations. (8) The statutorily expressed basis of the CSCS is compensatory. Section 2(2) of the Act provides for the scheme to make provision for the payment of allowances or gratuities “by way of compensation” to or in respect of persons who suffer loss of office or employment (or loss of diminution of emoluments) in such circumstances, or by reason of the happening of such an event, as may be prescribed by the scheme. (9) Before the establishment of the CSCS in 1995, rules relating to early termination compensation were included within the PCSPS itself, so that the one scheme covered both pension and early termination benefits. However, even after the CSCS was established as a distinct scheme, there continued to be the same strong links between pension terms and compensation terms on termination. The benefits payable under each of the PCSPS and the CSCS take into account those payable under the other. Benefits payable under both schemes have been, and continue to be, generous as compared to the private sector.”

[82]Mr Spain then goes on to say this: “(10) The CSCS sets out the basis on which departments can award compensation when civil servants’ contracts are terminated early, on grounds (amongst others) of redundancy or efficiency. Such employees would not otherwise be entitled to compensation for loss of employment as Crown employees have no statutory right to a redundancy payment. (11) The relevant provisions of the CSCS assume, where there has been a nofault dismissal on the ground of redundancy (whether voluntary or compulsory or “voluntary exit”), that there is the potential for the employee to suffer financial loss, in terms of loss of earnings and pension, between dismissal and the employee either obtaining alternative employment or reaching normal pension age, at which point the employee becomes eligible to receive their pension (including the option of a lump sum) without any reduction for early receipt. (12) Such CSCS compensation seeks, so far as appropriate and reasonable to bridge the gap between the date the employment comes to an end and the date on which the individual may obtain alternative employment or otherwise – at latest – receive their full pension (including an entitlement to a lump sum pension payment) at normal pension age. (13) The CSCS compensation is part of an overall package of termination benefits provided by the civil service to employees, including the valuable benefits paid under the PCSPS and CSOPS. Given that the available funds for such benefits are necessarily limited, the overall intention is to allocate those funds in a fair and equitable way amongst eligible employees. It is also necessary 10.5 Reserved judgment with reasons – rule 61 14 March 2017 to take into account that the CSCS is publicly funded and employees are not required to and do not make any financial contribution in respect of the CSCS.”

[83]In paragraphs 14 to 20 of his witness statement, Mr Spain refers to the reforms to the CSCS. It is not necessary to go into detail about this. Suffice it to say that work began on reform of the CSCS in 2003/2004. At that point, the CSCS was in the iteration which came into effect in 1987. A new version of the CSCS was laid before Parliament on on 22 December 2010. Amendments were made to the CSCS in March 2015. The one which is current and applicable to this case is ta pages 320 to 421. In paragraphs 21 to 41 of his witness statement, Mr Spain very helpfully takes the Tribunal through the scheme. In paragraph 23, he describes how the scheme applies in circumstances of compulsory redundancy, voluntary redundancy and voluntary exit.

[84]About voluntary exit Mr Spain’s evidence was as follows. (The Tribunal has cited paragraphs 26 and 27 already but these are set out again here for ease of reference): “(26) VE can be offered in the interests of workforce efficiency and where departments wish to reduce staff numbers, to support organisational changes, address promotion blockages and where there is limited efficiency. There is no compulsion on individuals to accept the offer; it is an agreement between the department and the employee. (27) Departments can therefore choose to run a VE scheme before commencing formal consultation on compulsory redundancy, thereby having some discretion on the terms of the offer. Any such scheme requires Cabinet Office approval before departments embark on consultation. Whilst each department ie DHSC in this case, makes the compensation payment to their employees on their last day of service, it is not for them to produce compensation quotes to its employees. My Civil Service Pensions (“MyCSP”) is the scheme administrator who apply the CSCS rules and associated guidance (at pages 318 to 421 and 422 to 428) to arrive at a calculation of compensation payable. (28) If a department decides to offer VE to its employees and to pay VE compensation, Rule 12.3 of the CSCS provides that the calculation of the maximum lump sum to be offered by an employer should be calculated by reference to the length of the employee’s “reckonable service” and their “pay” (and is subject to the “voluntary departure maximum” and the statutory redundancy payment underpin (pages 387 to 392). (29) Pay is the annual rate of basic pay plus any permanent allowances. The pay is worked out on the rate the employee will be getting on their last day of service, divided by twelve. This figure is then multiplied by each year or part year of service. The compensation cannot exceed the maximum of 21 months’ pay. If part time, the employee’s pay for compensation will be based on the full time equivalent. (30) The same essential formula is applied in relation to voluntary redundancy by Rule 12.4.5 (page 393) and in relation to compulsory redundancy by Rule 12.5.4 (page 398). Accordingly, the definition of “reckonable service” is a general application to all types of redundancy or voluntary exit termination arrangements under the CSCS. (31) The CSCS rules define “pay” as a person’s “annual rate of full time basic pay and annual full time rate of allowances granted on a permanent basis … for 10.5 Reserved judgment with reasons – rule 61 15 March 2017 the service in respect of which this scheme applies to the person as at the last day of reckonable service (Rule 12.1.2(1)(a) and (b)) (page 377). (32) Service means the number of years and days of the employee’s current employment. If they have worked part time during their employment, their compensation will be calculated on a pro rata basis. Their compensation is based on their length of employment and is not dependent on their service accrued in the PCSPS and Alpha schemes. (33) The CSCS rules define “service” as “the current period of continuous service in employment to which this scheme applies, including any period of that service during which the person is treated as having received assumed pay, any period of unpaid leave, any period of unpaid sickness absence …” (Rule 12.1.3(1)) (page 379). (34) “Reckonable service” is the service which counts towards the calculation of compensation benefits, and reflects the days actually worked. It is the current period of continuous employment in an employment to which the CSCS applies, providing any break in service does not exceed 28 days. (35) Rule 12.1.4(1) states that “reckonable service” has the same meaning as “service” except as provided for in paragraphs (2) and (4). (36) Rule 12.1.4(2)(a) states as follows: “The following periods do not count towards the person’s reckonable service … any period of unpaid leave.” (page 380). (37) The exclusions in Rule 12.1.4(2) are therefore material, because the definition of “service” in Rule 12.1.3(1) otherwise includes “any period of unpaid leave, any period of unpaid sick absence and any period during which P [the person concerned] receives sick pay at pension rate.” (38) The guidance for employers (“the guidance”) in the Employer Pension Guide makes clear that “Current reckonable service” excludes … Any periods of unpaid leave … unpaid maternity leave” (page 436). [The Tribunal has looked at some of these terms and definitions already in paragraphs 55 to 57]. (39) The CSCS therefore treats periods of unpaid absence, whether on maternity leave or otherwise, as excluded from the calculation of “reckonable service” for the purpose of determining compensation payable in the event of a voluntary (or compulsory) termination of employment on the basis of redundancy (or similar). (40) As mentioned above, departments can approach the Cabinet Office to seek the Minister’s agreement for the inclusion of other service in the calculation of “reckonable service” under Rule 12.1.4(3) (pages 424 to 425). This provision is not however designed for the circumstances relating to this case, where the CSCS rules are clear as to the service that is or is not included in the calculation of “reckonable service.” Rather, it is designed for circumstances where, for business reasons, an employer judges it would be appropriate to include service in another employment to which the CSCS does not apply, or service prior to the person’s current period of service.”

[85]The claimant did in fact raise issue in paragraph 40 of his witness statement with Mr Spain. He confirmed that in his view it would not be appropriate to approach the Cabinet Office to seek Ministerial approval for an individual arrangement in her case as the exit scheme in question was a group scheme. Mr Spain gave evidence under cross-examination that, “If a scheme involves a number of 10.5 Reserved judgment with reasons – rule 61 16 March 2017 people, they [the Minister in question] would not normally approve one with different arrangements for different people.”

[86]Mr Spain concludes this section of his witness statement with the following: (41) I understand that Mrs Parry took various periods of maternity leave during her employment, including compulsory maternity leave (“CML”), ordinary maternity leave (“OML”) and additional voluntary maternity leave (“AML”). I am also aware that some periods of maternity leave were unpaid, either because Mrs Parry did not qualify due to having insufficient qualifying service for CML and OML, or because she exercised her right to AML after the expiry of the period of her paid maternity leave. These periods of unpaid maternity leave (“the disputed periods”) were therefore specifically exempt from the calculation of “reckonable service” in relation to Mrs Parry’s VE compensation, in line with the above CSCS rules.” The claimant raised with Mr Spain the rationale for the exclusion of unpaid maternity leave from the calculation of reckonable service by Rule 12.1.4(2)(a) of the scheme. It was suggested to Mr Spain by the claimant that not counting unpaid maternity leave was an oversight. Mr Spain said that he was unable to comment and has no recollection of being asked for the justification or rationale of the exclusion of unpaid maternity leave (or for that matter other periods of unpaid leave). He was unable to offer a reason.

[87]This concludes the Tribunal’s factual findings. The parties’ submissions and the relevant law

[88]The Tribunal now turns to the parties’ submissions and a consideration of the relevant law. It is helpful, at the outset, to describe the statutory maternity leave scheme. This is set out in sections 71 to 75 of the Employment Rights Act 1996 (“the 1996 Act”) and in the Maternity and Parental Leave Etc Regulations 1999 (“MAPLE”) which provide details of how the scheme operates in practice.

[89]There are three periods of statutory maternity leave. All pregnant employees are entitled to take 26 weeks of ordinary maternity leave, regardless of their length of service. (Although there is no minimum period of qualifying service for the right to take statutory maternity leave, in order to qualify for statutory maternity pay a woman must have completed 26 weeks of continuous service by the beginning of the fourteenth week before the expected week of childbirth. It was because the claimant was short of the 26 weeks’ continuous service requirement that she received no statutory maternity pay in her first pregnancy).

[90]All pregnant employees are entitled to take a further 26 weeks additional maternity leave at the end of their ordinary maternity leave period, regardless of length of service.

[91]No employee may work for her employee for a period of two weeks starting with the day on which childbirth occurs. This is the period of compulsory maternity leave. The period of compulsory leave forms part of the ordinary maternity leave period.

[92]The 1996 Act provides for ordinary maternity leave at section 71, compulsory maternity leave at section 72, and additional maternity leave at section 73. By section 71(1) “An employee may, provided that she satisfies any conditions which may be prescribed, be absent from work at any time during an ordinary maternity leave period.” By section 72, “An employer shall not permit an employee who satisfies prescribed conditions to work during a compulsory maternity leave 10.5 Reserved judgment with reasons – rule 61 17 March 2017 period.” Contravention of this requirement is on pain of criminal sanction (see section 72(5). By section 73(1), “An employee who satisfies prescribed conditions may be absent from work at any time during an additional maternity leave period.”

[93]Mr Tolley therefore drew a distinction between the concepts of ordinary and additional maternity leave (which is at the choice of the employee exercising a statutory right lawfully permitting for absence) on the one hand and compulsory maternity leave on the other. In the latter situation, if the employee chooses to take time off then she is deemed to have permission so to do and the compulsory maternity leave period is effectively subsumed within the period of ordinary maternity leave. In contrast, if the employee exercises her right to return to work, then the employer must prevent her from doing so for the first two weeks following the birth of the baby.

[94]Those in Crown employment enjoy the statutory right to ordinary and additional maternity leave. The relevant provision is section 191(2)(c) of the 1996 Act. (The position may be contrasted with the right to a redundancy payment. Crown employees are excluded from the application of Part XI of the 1996 Act by section 191(2). Mr Spain referred to Crown employees being excluded from the statutory right to a redundancy payment in section 10 of his witness statement).

[95]The exercise of the right to take ordinary and additional maternity leave is, as we have seen, subject to prescribed conditions. These prescribed conditions in MAPLE. These concern notification requirements. Essentially, in order to qualify for statutory maternity leave, the employee must notify the employer no later than the end of the fifteenth week before the expected week of childbirth of the several matters prescribed by Regulation 4 of MAPLE.

[96]A woman can choose when she starts her ordinary maternity leave. However, this leave cannot commence earlier than the beginning of the eleventh week before the expected week of childbirth.

[97]The period of additional maternity leave commences on the day after the last day of her ordinary maternity leave. The period of ordinary maternity leave is 26 weeks followed by an entitlement to a further 26 weeks of additional maternity leave, making 52 weeks in total.

[98]The two forms of leave have been kept separate because the employee’s right to return to work are different. The authorities bundle contains (at pages 210 to 251) a copy of the chapter on maternity leave from Harvey on Industrial Relations and Employment Law (‘Harvey’). At [132] (at page 210 of the bundle) it is said that “the only distinctions in practice [between the employee’s rights and duties when returning from OML or AML] are that the terms of the right to return to work after leave are more restrictive on the employer and more beneficial to the employee, if she returns at the end of OML; and that pension rights do not accrue during any unpaid part of AML [emphasis added]. It will be recalled that in paragraph 43 of his witness statement Mr Spain gave evidence to the effect that “a period on unpaid AML does not count as reckonable service under [the PCSPS or CSCS].”

[99]Therefore, in the majority of cases an employee’s statutory maternity leave will be for a period of 52 weeks unless she elects to return to work early. This is made up of 26 weeks of ordinary maternity leave and 26 weeks of additional maternity leave. 10.5 Reserved judgment with reasons – rule 61 18 March 2017

[100]Section 71(4) and 73(4) of the 1996 Act and Regulation 9(1) of MAPLE provide that an employee who takes ordinary maternity leave or additional maternity leave is:  Entitled to the benefit of all the terms and conditions of employment which would have applied if she had not been absent, and  Bound by any obligations arising under those terms and conditions (except in so far as they are inconsistent with the employee’s right to take OML or AML).

[101]“Terms and conditions of employment” for these purposes include “matters connected with an employee’s employment whether or not they arise under her contract of employment but … does not include terms and conditions about remuneration.” This is provided for by sections 71(5) and 73(5) of the ERA. What this means is that the contract of employment continues during her entire statutory maternity leave and that the employee must be treated in all respects as if she was not absent both in terms of the benefits to which she is entitled, and the obligations owed to the employer. The only exception to this is that she is not entitled to receive remuneration (unless of course there is a contractual right to maternity pay, such as arose in this case in the claimant’s second and third pregnancies).

[102]Until 1 October 2010, the principal sex discrimination statutes were the Equal Pay Act 1970 and the Sex Discrimination Act 1975. These both came into force on 29 December 1975. The Equal Pay Act was concerned with contractual sex discrimination. This achieved its purpose by providing that every contract of employment was deemed to include an “equality clause” modifying any contractual term that was less favourable than the equivalent term enjoyed by an actual comparator of the opposite sex doing equal work so that the term was no less favourable. (There were defences available to employers able to show a non-discriminatory material reason for the difference in pay).

[103]The Equal Pay Act did not offer a remedy for sex discrimination not rooted in the contract of employment. This encompassed matters such as a refusal to recruit or promote a woman because of her sex. This mischief was sought to be addressed by the Sex Discrimination Act.

[104]The separation and distinction between discrimination in contractual matters and discrimination in other work-related matters was maintained when the Equality Act and Sex Discrimination Act were repealed and replaced by the Equality Act with effect from 1 October 2010.

[105]Provision making it unlawful to discriminate on the grounds of sex in contractual terms is now to be found in Chapter 3 of Part 5 of the 2010 Act which is entitled ‘Equality of Terms.’ Provision making unlawful to discriminate on the grounds of sex in other work-related matters is now to be found in the discrimination provisions in Chapter 1 of Part 5 of the 2010 Act. Therefore, the distinction between inequality in contractual terms and other claims of sex discrimination has been maintained.

[106]A complaint about discrimination in the terms of employment may not be brought under Chapter 1 of Part 5 of the 2010 Act pursuant to section 39(2)) by virtue of sections 70 and 71 of the 2010 Act. There is therefore a specific statutory bar from the pursuit of complaints of sex discrimination in relation to a term modified 10.5 Reserved judgment with reasons – rule 61 19 March 2017 or included by virtue of the Sex Equality Rule other than the by pursuit of an equal pay claim brought pursuant to Chapter 3 of Part 5 of the 2010 Act.

[107]However, the right to equal pay is partially suspended while a woman is on maternity leave. A woman is not entitled, during this period, to receive equal pay to a comparable man who remains at work (Gillespie and others v Northern Health and Social Services Board and Others

[1996] ICR 498

ECJ). It was held in that case that a woman taking maternity leave is in a special position that requires them to be afforded special protection which is not comparable with that of a man or with that of a woman at work. There was therefore nothing requiring that the woman absent from work on maternity leave should continue to be paid full pay during her maternity leave.

[108]While women on maternity leave are not entitled to full pay, the 2010 Act does provide some protection in respect of certain aspects of pay and other benefits (including pensions).

[109]Protection for certain aspects of pay is achieved by the ‘Maternity Equality Clause’ which is implied into the terms of a woman’s contract by virtue of section 73(1) of the 2010 Act and has the effect referred to in section 74.

[110]These provisions enshrine a woman’s right to benefit from pay rises in the calculation of her contractual maternity pay. She is also entitled to receive pay (including bonuses) in respect of times before she went on maternity leave, bonus in respect of times when she is on compulsory maternity leave and bonus in respect of times after the end of the protected period (that being the end of statutory maternity leave). Any contractual bonuses due in respect of any of those periods must still be given. Further, by section 74(8) of the 2010 Act, a woman’s pay upon her return to work after maternity to leave will be subject to an increase to which it would have been subject had she not been on maternity

[111]Just as sections 70 and 71 of the 2010 Act make the equal pay provisions of the 2010 Act (by implication of the Sex Equality Clause)) the correct cause of action for complaints of sex discrimination in relation to contractual terms, so section 76 of the 2010 Act makes the Maternity Equality Clause (and any breach of it) the proper avenue for complaints of maternity or pregnancy discrimination in relation to such terms. This is by virtue of section 76(1) and (1A). This has the effect of excluding the application of section 39(2) to a term of a woman’s work that is modified by the Maternity Equality Clause or that relates to pay but in relation to which the Maternity Equality Clause has no effect.

[112]Just as a woman on maternity leave is entitled to certain protections in relation to her pay by virtue of the Maternity Equality Clause, so too a woman on maternity leave also benefits from protection in relation to her rights under an occupational pension scheme. This protection is given effect by section 75 of the 2010 Act which provides for the deemed inclusion of a ‘Maternity Equality Rule’ in an occupational pension scheme.

[113]This Maternity Equality Rule has the effect that any term of the scheme, or any discretion capable of being exercised under it, that purports to treat a women differently in respect of a time when she is on maternity leave compared with the time when she is not, is modified so that both periods fall to be treated in the same way. This is the effect of section 75(3) and (4) of the 2010 Act. Any term or discretion relating to membership of the scheme, accrual of rights or 10.5 Reserved judgment with reasons – rule 61 20 March 2017 determination of benefits payable under the scheme falls within the scope of the Maternity Equality Rule by section 75(5) and (6).

[114]By section 75(7) the Maternity Equality Rule does not require the woman’s contributions to the scheme in respect of the time when she is on maternity leave to be determined other than by reference to the amount she is actually paid (whether in the form of statutory maternity pay or contractual maternity pay) during that time. For the purposes of pension contributions, she is not required to continue to make contributions that she would otherwise have made.

[115]The explanatory notes to the 2010 Act (helpfully copied into the authorities bundle at pages 58 to 70) says this about the effect of section 75(7) (at paragraph 264 of the notes): “This section replaces the previous provisions on “unfair maternity provisions” in paragraph 5 of schedule 5 to the Social Security Act 1989 and replicates aspects of Regulations 9 and 18A of the Maternity and Parental Leave Etc Regulations 1999. Examples:  A woman who is on maternity leave will be entitled to continuing membership of the scheme throughout the period of maternity leave whether or not she is paid.  A woman who is paid whilst on maternity leave will be entitled to accrue rights in a scheme as though she were paid her usual salary but she will only be required to make contributions based on her actual pay.”

[116]Once the woman’s right to paid maternity leave (of whatever kind) has expired, the employer is not obliged to make payments on her behalf. By section 75(9)(a) of the 2010 Act, the Maternity Equality Rule does not apply to the accrual of rights under the scheme during the time when the woman is on additional maternity leave but not being paid by her employer. She of course retains her entitlement to membership of the scheme but does not accrue further rights under it while not being paid by the employer.

[117]The reference to being “paid by her employer” includes a reference to the receipt of SMP (by section 75(10)(b)). (The claimant of course received SMP during her second and third periods of maternity leave once she had exhausted her entitlement to contractual maternity pay. During her first period of maternity leave, she was entitled to neither contractual nor statutory maternity pay).

[118]No issue arises as to the claimant’s entitlement to statutory maternity pay as a Crown employee. Crown servants are treated as employees for statutory maternity purposes pursuant to section 169 of the Social Security Contributions and Benefits Act 1992. As we have seen per Gillespie, provided that a woman is paid statutory maternity pay at the relevant rate while she is on statutory maternity leave there will be no discrimination by paying more to a man who remains in work. (Despite the United Kingdom’s withdrawal from the European Union, the decision of Gillespie remains relevant as assimilated EU Law by section 6(5) of the European Union (Withdrawal) Act 2018).

[119]Statutory maternity pay is payable by employers for a continuous period of 39 weeks to all women who satisfy the qualifying conditions. The first six weeks are payable at the “earnings related rate” which is 90% of the employee’s normal weekly earnings. The remaining 33 weeks are paid at the “prescribed rate” or 10.5 Reserved judgment with reasons – rule 61 21 March 2017 the “earnings related rate” whichever is the lower. It follows therefore that section 75(9)(a) of the 2010 Act (providing for the non-accrual of pension rights) takes effect in practice during the last three months of maternity leave (that is to say, from weeks 40 to 52 inclusive when the right to statutory pay is exhausted unless there is any contractual right to pay).

[120]As has been noted already, the position is summarised in Harvey at [132] “…pension rights do not accrue during any unpaid part of AML.” At [135.04] Harvey says that, “The overall effect [of sections 73 to 76] of the 2010 Act is to ring fence issues in relation to pay and accrual of pension during maternity leave, so that the employee has the rights conferred by her contract, as modified if necessary by the maternity equality provisions and rights under the pension provisions and the SMP legislation, but no general right not to be discriminated against in matters of pay and pension accrual. It soon became apparent, however, (unsurprisingly, perhaps, given the exceptional complication of the structure of the old legislation on this point) that the new section 76 was defective, and an amendment to it was made soon after the act came into force by the Equality Act 2010 (Amendment) Order 2010 SI 2010/2622, adding section 76(1A), with the avowed intention to make it clear that any issues of alleged unfavourable treatment related to pregnancy, maternity or the taking of leave in respect of pay may only be pursued under the provisions of the [2010 Act] on equality of terms [that being those in chapter 3 of Part 5 of the 2010 Act] In other words, the dividing line between ss 6(6) and 8(5) [that is, contractual and noncontractual terms under the Sex Discrimination Act 1975] is now replicated in the [2010] Act”

[121]Harvey goes on at [135.05] to say that “The position in summary under [the 2010 Act] is accordingly that pregnancy and maternity discrimination, as defined in section 18, is rendered unlawful by section 39(2) in relation to terms of employment, access to benefits etc, subjection to detriment and dismissal. Additionally, section 74 deems there to be a maternity equality clause which has the limited effects relating to pay during maternity leave described in section 74. Section 39(2) is then disapplied by section 76(1) in relation to any terms to which section 74 applies, and additionally by section 76(2) in relation to any term modified by the effect of the equality of terms provisions, with the consequence in each case that any claim in relation to such a matter has to be made as an equal pay claim not a pregnancy discrimination claim. Section 76(1A) (the provision inserted by the amending Order) then disapplies section 39(2) for any other term related to pay that are not affected by the maternity equality clause; this has the effect that terms relating to pay, so far as relating to pregnancy and maternity, which are not caught by section 74 or modified by the equality of terms provisions are simply not caught at all by the Act.”

[122]This passage then goes on to say that “This may appear to be a convoluted way of providing that, rights to SMP and simple contractual rights to maternity benefits apart, the only protection given to pay during maternity leave is the requirement that there is no breach of the requirements set out in section 74. Nevertheless, an ordinary equal pay claim based on those terms not in abeyance during maternity leave is maintainable under section 73 notwithstanding that the employee is at the time on maternity leave.” The same may be said not only for any breach of the Maternity Equality Clause in section 74 but also of the Maternity Equality Rule in section 75 as section 76 of the 2010 Act excludes the application of section 39(2) from any term modified by the Maternity Equality Clause or Rule. 10.5 Reserved judgment with reasons – rule 61 22 March 2017

[123]As it was put by Mr Tolley in paragraph 36 of his skeleton argument, “In relation to matters of pay and accrual of pension during maternity leave, an employee has her contractual rights, as modified if necessary by the maternity equality rule, but no other or more general right not to be discriminated against in matters of pay or pension accrual.”

[124]Harvey [137] also neatly summarises the matter (at page 219 of the authorities bundle). The passage reads that, “The exclusion relating to terms and conditions of employment dealing with remuneration does not stop a woman accruing pensionable service or other benefits which depend on length of service during her absence so long as those do not fall under the heading of remuneration. However, section 75 [of the 2010 Act], re-enacting the substance of the Social Security Act 1989, schedule 5 paragraph 5 but by way of introducing a new concept, the ‘maternity equality rule’, requires that women are not treated less favourably by their employer in relation to pension contributions during any period of paid maternity absence than they would normally be treated when working. Since “paid” is defined as including the payment of SMP, this has the effect that accrual of pension rights continues during the 27th to 39th week of maternity leave, at least where the woman has sufficient qualifying service to be entitled to receive SMP. As to the position during any AML after the end of the paid period, … nothing [in MAPLE] concerning the treatment of AML is to be taken to impose a requirement exceeding those in schedule 5 para 5 to the Social Security Act 1989. This is replicated in [the 2010 Act] which repeals schedule 5 para 5 but provides by section 75(9) that the general provisions of the maternity equality rule for the accrual of rights during maternity leave do not apply during the unpaid part of AML. The effect is that during AML, pensionable service accrues during any period of entitlement to pay (including SMP or any contractual remuneration (eg payment for working on “keep in touch” days) but not otherwise. On the other hand, contractual rights to accrue pension benefits during OML are preserved by MAPLE Regulation 9 and now [section 75(8)] of the 2010 Act regardless of whether the employee is paid SMP, contractual remuneration or neither.

[125]Mr Tolley drew to the Tribunal’s attention an oddity in Regulation 9 of MAPLE, that being the reference to the now repealed schedule 5 of the Social Security Act 1989. As we saw from the passage in Harvey at [137] schedule 5 of the Social Security Act 1989 was re-enacted by section 75 of the 2010 Act. We can see from the excerpt from the 1989 Act (at page 8 of the authorities bundle) its repeal with effect from 30 September 2010.

[126]The validity of the proposition in Harvey at [137] nonetheless holds good. This is because by section 17 of the Interpretation Act 1978, where any Act repeals and re-enacts without modification, a previous enactment then, unless the contrary intention appears any reference in any other enactment to the enactment so repealed should be construed as a reference to the provision re-enacted. In other words, the reference in Regulation 9 of MAPLE shall be construed as being to section 75 of the 2010 Act as opposed to schedule 5 of the 1989 Act. The position remains therefore that during AML, pensionable service under an occupational pension scheme accrues during any period of entitlement to pay (including SMP and keeping in touch days) but not otherwise. The converse is the case. Any period where a woman is on maternity leave but is not paid does not accrue periods of pensionable service.

[127]If the VES is an occupational pension scheme under the Equality Act 2010, then it follows from this that the claimant’s only remedy when complaining about sex 10.5 Reserved judgment with reasons – rule 61 23 March 2017 discrimination in its operation is for breach of the Maternity Equality Rule which action must be brought under chapter 3 of part 5 of the 2010 Act.

[128]In paragraph 31 of his skeleton argument, Mr Tolley said that “As will become apparent, the identification of the relevant provisions of the Equality Act 2010 … turns on the question whether the CSCS is an “occupational pension scheme.”

[129]The respondent’s position is that it does come within the definition in the 2010 Act of an occupational pension scheme. Accordingly, the Maternity Equality Rule which applies to occupational pension schemes is deemed to be included (where one is not already incorporated in the scheme) by virtue of section 75(1). This means that the general prohibitions on discrimination in section 39(2) are therefore excluded by the ring-fencing effect of section 76 and that the Maternity Equality Rule is applied instead of any other provision of the 2010 Act.

[130]In essence, the respondent’s position may be summarised as follows:  Going back to first principles, at common law an employee who offers their services to the employer is entitled to be paid (unless there is a specific term of the contract giving the employer the right to withhold payment).  A woman who exercises her right to take ordinary or additional maternity leave is therefore by definition not offering her services to the employer. At common law, she is therefore not entitled to be paid anything.  She is entitled to be paid should there be an express contractual provision to that effect or a right to be paid while on maternity leave other than by an express term of the contract – usually, by statute. If there is no contractual or statutory right to pay, then the woman is not entitled to be paid anything.  The situation where the woman is entitled to be paid nothing in the normal course usually arises between weeks 40 and 52 of a period of ordinary and additional maternity leave (unless there is a more generous contractual maternity leave provision than applied in Mrs Parry’s case). This is the situation which arose in the second and third maternity leave periods taken by the claimant. (In her first maternity leave period she had no entitlement to be paid anything at all over the entire period as she had accrued no contractual or statutory rights to pay).  A woman who exercises her right to take statutory maternity leave is in a special position. She is protected against dismissal (by the 2010 Act and by the Employment Rights Act 1996). However, she has no right to claim pay equal to a comparable man who remains at work. The man is entitled to be paid in that circumstance as he is offering his services (and usually performing services) for the benefit of the employer.  Although not entitled to be paid her usual salary (absent a contractual right to such), the statutory implication of the Maternity Equality Clause provides some protection during the period of maternity leave.  A Maternity Equality Rule is also implied by section 75 of the 2010 Act in relation to occupational pension schemes. However, that right to equal treatment by accrual of rights only pertains whenever the woman is being paid contractual or statutory entitlements. 10.5 Reserved judgment with reasons – rule 61 24 March 2017  A complainant in Mrs Parry’s position may only complain of a breach of her rights pursuant to the statutorily implied Maternity Equality Clause and/or Rule and nothing else by virtue of section 76 of the 2010 Act as described in paragraph 121 above. As Mr Tolley put it, in Mrs Parry’s circumstances where there is an occupational pension scheme as defined by the 2010 Act, a complaint under the 2010 Act may only be brought of an infringement of section 75 (the Maternity Equality Rule) which is the “only game in town” for her. Her only claim therefore arises under chapter 3 (‘Equality of Terms’) and not chapter 1 of part 5 (‘Employment etc’) of the 2010 Act.

[131]As he says in paragraph 45 of his written submissions, “…this approach is consistent with the important underlying point that there is a distinction between, on the one hand, dismissal of a woman as a result of pregnancy or maternity (which is necessarily unlawful and where there is no question of any comparison with a man) and on the other, a difference in treatment as to pay. As the Court of Appeal explained in Commissioner of The City of London Police v Geldart

[2021] EWCA Civ 611

2021 ICR 139

at [62]. “The scheme of both the domestic and the EU legislation is that a woman should receive “maternity pay” on a prescribed basis for a prescribed period; but the whole premise of the scheme is that that is required because she would not otherwise be entitled to be paid since she is not available for work … it is plainly not sex discrimination not to pay a female employee who is absent on maternity leave more than the amount of maternity pay to which she is entitled during the prescribed period, nor, if she remains absent beyond that period, not to pay her at all.”

[132]Authority for the proposition that it is not sex discrimination not to pay a female employee who is absent on maternity leave more than the amount of maternity pay to which she is entitled during the prescribed period is to be found in that passage from Geldart and, of course, Gillespie.

[133]It was established in Webb v EMO Air Cargo (UK) Limited

[1993] ICR 175

and in Webb v EMO Air Cargo (UK) Limited (No 2)

[1995] ICR 1021

that the dismissal of a worker because of current or anticipated pregnancy or maternity absence is to be treated as discrimination on the grounds of sex without the need for the identification of a male comparator in materially the same circumstances. In such a circumstance, the woman would be able to bring a complaint under section 39(2)(c) of the 2010 Act. (If the dismissal occurred during the protected period, then the claim would be brought under section 18 of 2010 Act when read with section 39(2)(c). Likewise, a complaint of dismissal for exercising, seeking to exercise or having exercised the right to ordinary or additional maternity leave would also be brought as a complaint of unfavourable treatment under section 18 rather than under section 13 - see section 18(7)).

[134]As Underhill LJ observed in paragraph 45 of Geldart, Webb (and the earlier authorities culminating in Webb) were not concerned with pay. They were about dismissal. The Tribunal has highlighted the distinction between complaints about pay on the one hand (which have a contractual basis) and other cases. It is upon this basis that the respondent argues that the claimant’s only remedy for the way in which her compensation was calculated under the relevant voluntary entry scheme arises through the statutory implication of the Maternity Equality Rule in section 75 which is applicable to occupational pension schemes. (Gillespie 10.5 Reserved judgment with reasons – rule 61 25 March 2017 establishes there to be no right or entitlement to full pay during maternity leave. The claimant therefore has no right to complain of a breach of the Sex Equality Clause in section 66 of the 2010 Act).

[135]To make good their submissions therefore, it is for the respondent to show that the CSCS was an occupational pension scheme. The term “occupational pension scheme” features in section 75(1) and elsewhere in the 2010 Act (for instance in section 67(1) which imports a sex equality rule into occupational pension schemes).

[136]By section 212(1) of the 2010 Act the term “occupational pension scheme” has the meaning given in section 1 of the Pension Schemes Act 1993. Section 1 of the 1993 Act is copied into the authorities bundle at pages 44 to 46.

[137]Section 1(1) of the 1993 Act provides that, “In this Act, unless the context otherwise requires – “occupational pension scheme” means a pension scheme – (a) that – (i) for the purposes of providing benefits to, or in respect of, people with service in employments of a description or (ii) for that purpose and also for the purpose of providing benefits to, or in respect of, other people, is established by, or by persons who include, a person to whom subsection (2) applies when the scheme is established or (as the case may be) to whom that subsection would have applied when the scheme was established had that subsection then be enforced …

[138]Section 1(2) provides that this subsection applies –(a) where people in employments of the description concerned are employed by someone, to a person who employed such people,

(b) to a person in an employment of that description, and

(c) to a person representing interests of a description framed so as to include – (i) interests of persons who employ people in employments of the description mentioned in paragraph (a) or (ii) interests of people in employments of that description.”

[139]Section 1(5) of the 1993 Act provides that“In subsection (1) “pension scheme” (except in phrases “occupational pension scheme”, “personal pension scheme” and “public service pension scheme”) means a scheme or other arrangements, comprised in one or more instruments or agreements, having or capable of having effect so as to provide benefits to or in respect of people –(a) on retirement,

(b) on having reached a particular age, or

[140]The respondent submitted that the CSCS therefore satisfies this statutory definition as it is a “scheme or other arrangement,” which is “comprised in one or more instruments or agreements”, and which “[has] effect (or is capable of having effect) so as to provide benefits to or in respect of people and which has the effect of providing benefits to or in respect of people” on (amongst other things) “termination of service in an employment.” 10.5 Reserved judgment with reasons – rule 61 26 March 2017

[141]The Tribunal agrees with the respondent’s submission that the CSCS satisfies the statutory definition of an “occupational pension scheme” within section 1 of the 1993 Act and therefore in section 212(2) of the 2010 Act. Mr Spain explained the history of the CSCS and its statutory foundation (see paragraph 81 above). On any view, the CSCS is comprised in one or more instruments or agreements, those being the statutory schemes established under the Superannuation Act 1972 and by the statutory instruments laid before Parliament from time-to-time as listed in paragraphs 318 and 319 of the bundle (being the rules of the CSCS). The purpose of section 2 of the 1972 Act is to authorise the Minister to make provision for payment of compensation for persons who suffer loss of employment or office (per Sales J (as he then was) in R (Public and Commercial Services Union) v Minister for the Civil Service

[2010] EWHC 1027

. It cannot sensibly be suggested that the CSCS was not established by an instrument or agreement, the latest version having been reached (as described by Mr Spain in paragraphs 14 to 20 of his witness statement) after discussion with the relevant trade unions before being laid before Parliament in March 2015. The claimant did not seek to suggest otherwise.

[142]In City and County of Swansea v Johnson

[1999] Ch189

, Hart J held (at 195C to 196D) that a scheme which provided benefits payable on termination of service is an occupational pension scheme. Johnson is in the authorities bundle commencing at page 107.

[143]At page 195 F to H of the case report (page 113 of the authorities bundle), Hart J said “As to that question [as to whether the payment of an injury allowance pursuant to Regulation L3 of the Local Government Superannuation Regulations 1986 in part of an occupational pension scheme)], I begin with the intuitive predisposition to find that a scheme of this nature, ie one whereby the employer binds itself to pay compensation on a no fault basis on termination of employment as a result of an injury sustained or disease contracted in the course of employment, is not an occupational pension scheme. It is, however, difficult to say that such a scheme does not provide ‘benefits in the form of pensions or otherwise, payable on termination of service’ [within the definition in section 1 of the 1993 Act]. Those words are, as Millet LJ pointed out in Westminster City Council v Haywood

[1998] Ch377

, 409, of wide ambit. Other examples may be given of schemes or arrangements, not otherwise obviously pension schemes, which are potentially within those words: a provision, for example, in an employment contract for agreed damages in the event of a dismissal before the expiry of the contractual employment term, or for compensation for termination of the employment contract on grounds of redundancy. I do not, however, think that it is open to me to hold some gloss can be put on the words “benefit … payable on termination of services” so as, without more, to exclude from their ambit payment of the types mentioned above. Westminster City Council v Haywood was itself concerned with the question of a complainant’s entitlement to compensation under a severance scheme.”

[144]The issue in Johnson concerned a Pensions Ombudsman’s award about the injury allowance scheme in question which was challenged by the local authority on the basis that the Ombudsman had no jurisdiction to consider the complaint since the scheme of allowances in Part L of the Local Government Superannuation Regulations 1986 did not constitute an “occupational pension scheme” as defined by section 1 of the Pensions Schemes Act 1993. (The same defence in Haywood in fact succeeded upon the wording of the law as was then 10.5 Reserved judgment with reasons – rule 61 27 March 2017 relevant). Hart J concluded that the injury allowance scheme in Regulation L3 of the 1986 Regulations “produces the counter intuitive result that a scheme such as that contained in Part L is an occupational pension scheme whether or not it forms part of a wider scheme which admittedly is.”

[145]In Chief Constable of Derbyshire Constabulary v Clarke, Chief Constable of West Midlands Constabulary v Bell

[2024] EWCA Civ 676

[2024] ICR 1147

the Court of Appeal held at [44] to [46] that subsection 1(5) of the 1993 Act defines the circumstances in which a scheme providing for the benefits mentioned in section 1(5) of the 1993 Act are such as to bring it within the definition of “occupational pension scheme.” Clarke and Bell is in the authorities bundle at pages 186 to 209.

[146]At [46] Lewis LJ said that “In context, and indeed on the ordinary and natural reading of the words, subsection 1(5) is defining the circumstances in which a scheme provides for benefits to be provided. The key word is “on.” To be a pension scheme within the meaning of section 1(5), 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. That conclusion is reinforced by the use of the word “on” in section 1(5)(b). A scheme will be a pension scheme if it provides benefits “on a person having reached a particular age.” It is clear that having reached the particular age is the event which gives rise to the entitlement to benefits.”

[147]He went on to say at [48] that he was satisfied, however, that the words “capable of having effect” in section 1(5)” are still governed by the remainder of the words in the subsection. The scheme must be one capable of having effect “so as to provide benefits to or in respect of people” on the occurrence of the events specified in subsection 1(5)(a) to (c). It is not enough if the scheme provides for benefits in circumstances which coincide with the events specified in subsection 1(5)(a) to (c).”

[148]Lewis LJ also considered Haywood, Johnson and Parlett v Guppys (Bridport) Limited (No 2)

[2000] Pens LR 195

, CA. He noted at [53] that each of these cases involved a situation where a scheme provided for the payment of benefits on termination or on retirement and consequently fell within the definition of an occupational pension scheme. This may be contrasted with the facts in Clarke and Bell in which the scheme contained in Regulation 12 of the Police (Injury Benefit) Regulations 2006 did not constitute an occupational pension scheme within the meaning of section 61 of the 2010 Act as it did not provide for the payment of benefits “on retirement” or “on termination of service” within the definition in section 1 of the Pension Schemes Act 1993. (Section 61 of the 2010 Act is in fact another example of a provision of the 2010 Act (to add to those in paragraph 135 above) in which the term “occupational pension scheme” features, section 61 providing that an occupational pension scheme must be taken to include a non-discrimination rule).

[149]The issue in Clarke and Bell (which concerned complaints of disability discrimination brought pursuant to the 2010 Act) was one of jurisdiction, that being whether the Police (Injury) Benefit Regulations 2006 constituted an occupational pension scheme within the definition in section 212(1). On the facts, it was held by the Court of Appeal that it did not as it did not provide for the 10.5 Reserved judgment with reasons – rule 61 28 March 2017 payment of benefits on retirement or on termination of service. It provided for the payment of a benefit in certain circumstances including the suffering of an injury in the execution of a police officer’s duty resulting in permanent or total disability within 12 months of sustaining the injury. The officer also had to have ceased to be a member of the police force. There was no requirement for the benefit to be payable on retirement or on termination of service. The scheme therefore was not an occupational pension scheme within the definition in section 1(5) of the 1993 Act and section 212 of the 2010 Act.

[150]Applying the statutory language in section 1 of the Pensions Schemes Act 1993, and the authorities which the Tribunal has looked at, the Tribunal concludes:(1) The CSCS is plainly a scheme or arrangement comprised in one or more instruments or agreements.

(2) It has the effect of providing benefits to persons in an employment of a description as set out in the CSCS.

(3) It has the purpose of providing benefits to people within that description.

(4) It is payable on termination of service in an employment. In this case, Mrs Parry’s termination payment was made on her final day of service. On any view, therefore, per Clarke and Bell, the payment to her of the severance payment occurred on the triggering of the event giving rise to entitlement to benefit, that being the termination of her service in her employment with the respondent.

[151]The claimant raised as an issue that the CSCS should not be regarded as a benefit because it is offered “in exchange for exiting the civil service and provides financial compensation for an individual’s loss of office, not a financial benefit.” Mr Tolley submitted that the term “benefit” features in section 1(1) (2) and (5) of the Pensions Schemes Act 1993. However, the word “benefit” is not defined in the 1993 Act.

[152]He submitted that the payment of the severance scheme to Mrs Parry was “inherently beneficial.” He drew the Tribunal’s attention to the passage at [46] of Clarke and Bell (at paragraph 146 above) and the passage from Johnson (at page 113 of the authorities bundle) again cited above in paragraph 143.

[153]Johnson and Clarke and Bell both of course concerned the payment of sums to individuals who sustained injury in the course of their employments. To that extent, the claimant is right to draw a distinction between the circumstances which pertained in those cases and hers. In the former cases, compensation was being provided for injury whereas in her case, no injury was involved. Mrs Parry had, of course, volunteered to leave the respondent’s employment and therefore consented to her loss of office.

[154]There is, in the Tribunal’s judgment, much merit in Mr Tolley’s point that the issue is whether the payment of a significant amount by way of a lump sum may be considered a benefit. It is difficult to see, as a matter of logic, how Mrs Parry’s argument that the payment to her of the VES compensation in question is not a benefit when she volunteered to leave the respondent’s employment. One wonders how that may not be considered a benefit in contrast to the views expressed by Lewis LJ in Clarke and Bell and by Hart J in Johnson that payments to injured employees on being compelled to leave employment were benefits. If anything, one would think that a payment to individuals injured and 10.5 Reserved judgment with reasons – rule 61 29 March 2017 compelled to leave their employment was less deserving of the epithet “benefit” than an individual who receives a significant lump sum when choosing to leave voluntarily. The payment to those injured may be viewed as intended to be compensatory rather than as beneficial.

[155]Indeed, the claimant’s position, respectfully, does not even appear to work on its own terms. The claimant is clear in her witness statement that she was attracted by the prospect of leaving and receiving a lump sum payment because of her personal circumstances prevailing at the time. As Mr Tolley pithily put it, “cash is necessarily a benefit”. The claimant was attracted to leave because of the prospect of a cash lump sum to help her through a difficult time. On any sensible view, that is a benefit to her. She received in one lump sum an amount which would have taken her well over a year to earn (in net terms) had she remained in employment.

[156]On any sensible view, the claimant received a benefit. It was payable to her on termination of service in her employment. It therefore falls squarely within the definition of a pension scheme in 1993 Act. The claimant is of course well short of her retirement age. She was 34 years of age when she volunteered for early severance. Upon this basis, the Tribunal respectively shares Hart J’s predisposition that the voluntary early severance scheme in question was not an occupational pension scheme. However, as has been said, the essential features of a pension scheme in Section 1 of the Pension Schemes Act 1993 are made out. As the CSCS meets the statutory definition under the 1993 Act, it inexorably follows that it also meets the statutory definition of occupational pension scheme in section 212(1) of the 2010 Act.

[157]It follows, therefore, that the respondent is correct that the CSCS is an occupational pension scheme within the meaning of section 212(1) of the 2010 Act and that the only potential basis for the claimant’s claim is the Maternity Equality Rule in section 75. The operation of section 39(2) of the 2010 Act is excluded by section 76.

[158]We have seen that upon the question of maternity and pensions, an employee on maternity leave benefits from the deemed inclusion of a Maternity Equality Rule such that any term of the scheme or any discretion capable of being exercised under it is modified such that the woman must be treated the same in respect of the time when she is on maternity leave compared with the time when she is not. As Mr Tolley submitted, the effect of section 75(3) and (4) of the 2010 Act is that maternity leave must be treated equally to the other kinds of leave but no more than that. There is no obligation upon the employer to provide for better treatment of an employee on maternity leave. The converse of this, of course, is that it is not open to the employer to treat other kinds of leave better than maternity leave.

[159]It follows that, in contrast with dismissal, benefit, and detriment cases not involving contractual remuneration, it is legitimate to compare the treatment of a woman on maternity leave with that of a man on leave for a different reason. As Underhill LJ said in Geldart at [62], “It is one thing to proscribe the dismissal, or other adverse treatment, of a woman for being absent as a result of pregnancy/maternity; but it is quite another to require that she be paid during a period of pregnancy/maternity absence. The scheme of both the domestic and the EU legislation is that a woman should receive “maternity pay” on a prescribed basis for a prescribed period; but the whole premise of the scheme is that that is 10.5 Reserved judgment with reasons – rule 61 30 March 2017 required because she would not otherwise be entitled to be paid since she is not available for work. That is stated explicitly by the CJU in Gillespie:…. It is plainly not sex discrimination not to pay a female employee who is absent on maternity leave more than the amount of maternity pay to which she is entitled during the prescribed period, nor, if she remains absent beyond that period, not to pay her at all.”

[160]So it is that the Tribunal now turns to the question of whether, in comparison with a man in like circumstances the treatment of the claimant in the computation of her reckonable service within the relevant occupational pension scheme (that being the CSCS) constituted unlawful discrimination. To answer this question, the Tribunal must turn to the applicable part of the CSCS. (The Tribunal has mentioned some of the definitions of terms within the CSCS already, in paragraphs 56 to 58 but they bear repeating).

[161]Section 12 of the CSCS is entitled ‘2010 Compensation Terms.’ Part 12.1 is the definitions section. By Rule 12.1.3(1) of the CSCS (page 379 of the bundle), “’Service’ in relation to a person (“P”) means the current period of continuous service in employment to which this Scheme applies, including any period of that service during which P is treated as having received Assumed Pay, any period of unpaid leave, any period of unpaid sick absence and any period during which P receives Sick Pay at Pension Rate.”

[162]“Reckonable Service” is in Rule 12.1.4(1) (page 380) - “Reckonable Service” in relation to a person (“P”) has the same meaning of P’s Service [ie in Clause 12.1.3(1)] except as provided for in paragraphs (2) and (4).” Clause 12.1.4(2) then provides that, “The following periods do not count towards P’s Reckonable Service but do not result in that period of Reckonable Service coming to an end –(a) any period of unpaid leave;

(b) any period of unpaid sickness absence;

(c) any period during which P receives Sick Pay at Pension Rate.” (Clause 12.1.4(4) is about part time working and is not relevant to Mrs Parry’s case).

[163]Therefore, for the purposes of calculating compensation or payments under the CSCS, any period of unpaid leave is discounted from the calculation of reckonable service. Whereas “Service” includes unpaid leave, “Reckonable Service” does not. Unpaid leave and any period of unpaid sick absence is treated the same by being discounted from the computation of reckonable service.

[164]Part 12.3 (at pages 387 to 392) is titled ‘Voluntary Exit Terms.’ It was this provision that was applied in Mrs Parry’s case to the computation of her severance payment under the VES. Under Rule 12.3.3, the employer may offer the employee a lump sum of an amount determined by the employer that meets the requirements of Rules 12.3.5 or 12.3.7. Rule 12.3.5 is applicable in this case as the respondent offered Mrs Parry the “standard tariff” as defined in clause 12.3.6. This is as an amount calculated by determining the length of the employee’s reckonable service (as defined in Clause 12.1.4(1)) in years and then multiplying one twelfth of the employee’s pay by the length of the employee’s reckonable service. (Rule 12.3.7 concerns payments made over the amount of the standard tariff).

[165]The word “pay” for this purpose has the meaning set out in rule 12.1.2. It means the total of the employee’s rate of full-time basic pay and the annual full-time rate of allowance as granted to the employee on a permanent basis to the extent, if any, that the relevant Minister has determined that they are to be treated as pay for the purposes of that rule. Accordingly, there being no such additional 10.5 Reserved judgment with reasons – rule 61 31 March 2017 allowances, we are concerned here only with Mrs Parry’s annual rate of full-time basic pay. (Where an employee is receiving statutory maternity pay then the employee is deemed to be in receipt of ‘Assumed Pay’ being the pay that the employee would have had, but for being in receipt of maternity pay. This is so as not to disadvantage a woman in receipt of maternity pay from the benefits she would have enjoyed from the scheme were she not on maternity leave. However, on the facts, Mrs Parry was in receipt of her full-time rate of pay anyway at the time of her voluntary severance).

[166]It was, of course, the discounting from the period of her service the periods of unpaid maternity leave which led to a lower reckonable service and Mrs Parry’s disappointment with the amount offered to her. The respondent’s case is that the Maternity Equality Rule in the 2010 Act applies only to periods of paid maternity absence. The reason that the disputed periods of unpaid additional maternity leave during her second and third periods of maternity leave and the entirety of the first maternity leave period were discounted from reckonable service for the purposes of the calculation of the voluntary early severance payment is simply because she was absent from work and had no contractual or statutory entitlement to any payment. A man unavailable for work by reason of sickness absence after having exhausted any contractual or statutory sickness entitlement also would not have received pay, by application of the CSCS rules cited in paragraphs 160 to 165. Unpaid leave of any kind is discounted from the calculation of reckonable service for the purposes of the VES terms. The respondent argues that it is legitimate to treat all periods of unpaid leave the same, that the comparison between a man’s and a woman’s position if on unpaid leave is legitimate and is not a breach of the Maternity Equality Rule as that Rule applies only to period of paid leave.

[167]The respondent derives support for their position from the explanatory notes to the 2010 Act cited in paragraph 115. By way of reminder the examples given were:  A woman who is on maternity leave will be entitled to continuing membership of the scheme throughout the period of maternity leave whether or not she is paid.  A woman who is paid whilst on maternity leave will be entitled to accrue rights in a scheme as though she were paid her usual salary but she will only be required to make contributions based on her actual pay” [emphasis added]. (Membership is preserved but not the accrual of benefit while unpaid)

[168]The Tribunal finds that the respondent’s position is well-founded. The second bullet point is salient – in the example, the woman has an entitlement to the accrual of rights in a scheme while being paid. The “unfair maternity provisions” in paragraph 5 of schedule 5 to the 1989 Act are at pages 8 and 9 of the authorities bundle. Paragraph 5 of schedule 5 provided the definition of “unfair maternity provisions” as those relating to continuing membership of, or the accrual of rights under, the relevant scheme during any period of paid maternity absence which in turn is defined in paragraph 5(3) as any period throughout which a woman is absent from work due to pregnancy or confinement and for 10.5 Reserved judgment with reasons – rule 61 32 March 2017 which her employer (or former employer as appropriate) pays her any contractual remuneration or statutory pay. The applicable payment during a period of maternity leave is treated as if it were a period throughout which the woman works normally and receives the remuneration likely to be paid for doing so. In other words, if paid at the contractual or statutory rate of remuneration, the woman continues to receive benefit under employment related schemes while on maternity leave and is treated as working during her maternity leave period. (We have seen that section 75 of the 2010 Act is a re-enactment of schedule 5 paragraph 5 of the 1989 Act).

[169]The employer is not, by Regulation 9(4) of MAPLE under any obligation to prefer a woman on maternity leave with any requirement exceeding those in paragraph 5 of schedule 5 to the 1989 Act (and now section 75 of the 2010 Act). It follows therefore that there is no breach of section 75(3) by not favouring a woman on maternity leave with credit for reckonable service in circumstances where if she were absent on unpaid leave for another reason (such as sick leave) as she would not.

[170]These are compelling arguments. In the Tribunal’s judgment, the CSCS treats all periods of unpaid leave in the same way in that they are not counted for the purposes of determining reckonable service. Such is consistent with the Maternity Equality Rule in section 75 of the 2010 Act (and its predecessor in the 1989 Act names ‘paid maternity absence’) that benefits only accrue in circumstances where the woman is on paid maternity leave. To repeat what was said in Geldart at [62], “It is plainly not sex discrimination not to pay a female employee who is absent on maternity leave more than the amount of maternity pay to which she is entitled during the prescribed period, nor, if she remains absent beyond that period, not to pay her at all” [emphasis added].

[171]As Mr Tolley accepted in paragraph 50(5) of his written submissions, the position might be otherwise if there were evidence to show that the employer treated other forms of unpaid leave differently to unpaid maternity leave. This might arise where unpaid sick leave was counted towards reckonable service where unpaid maternity leave did not. It being legitimate per Geldart to compare the treatment of a woman on maternity leave with a man on leave for a different reason upon issues of pay, clearly would such constitute unlawful indirect (if not direct discrimination, as only women can be pregnant - pregnancy may therefore be a proxy for being female for the purposes of such claim). However, this does not arise on the facts as rule 12.1.4(2) treats periods of unpaid leave for ill health and maternity the same. No distinction is drawn between maternity leave on the one hand other kinds of unpaid leave on the other.

[172]In her skeleton argument, the claimant argued that unpaid maternity leave should not feature in the definition of “unpaid leave” in rule 12.1.4(2). There is something in what Mrs Parry says as it is difficult to understand why as a matter of construction any distinction is drawn in the rule (as cited in paragraph 162 above) between unpaid leave on the one hand and unpaid sick absence on the other, where all unpaid leave of whatever kind is being treated the same for the purpose of calculating reckonable service for the VES. (In contrast, we have also seen earlier that “Assumed Pay” breaks down the several different kinds of leave for the purposes of the calculation of entitlements under the PCSPS. Those kinds of leave are treated as reckonable service for the purposes of the PCSPS). 10.5 Reserved judgment with reasons – rule 61 33 March 2017

[173]The difficulty for the claimant with this submission in any case is that (as Mr Spain says in paragraph 42 of his witness statement) the PCSPS (Classic) treats ordinary maternity leave as reckonable service (page 614). The Tribunal’s attention was not drawn to any provision within any of the schemes in the large volume of material presented where unpaid additional maternity leave is counted as reckonable service for any purpose (under the CSCS or the PCSPS). Mr Spain gave unchallenged evidence to this effect at paragraph 43 of his witness statement.

[174]In the Tribunal’s judgment, for these reasons the reference to “unpaid leave” in clause 12.1.4(2) of the CSCS is wide enough to cover periods of unpaid maternity

[175]The claimant also prayed in aid the provisions in section 75(6) (when read with section 75(4)) that a term conferring a relevant discretion shall be treated in the same way when the woman is on maternity leave as it would be when she is not. That discretion extends to decisions capable of affecting (amongst other things) the accrual of rights under the scheme. In the Tribunal’s judgment, this is to no avail for Mrs Parry. Mr Spain’s evidence was clear, that discretion would not be exercised in a case such as this where a group voluntary exit scheme has been formulated and is being implemented. As Mr Tolley said in submissions, Mrs Parry was simply wishing for discretion to be exercised in her favour affording her more favourable treatment than others by addition to the computation her periods of unreckonable service.

[176]The claimant argued that she would not have lost out on the disputed period of reckonable service had she not been on maternity leave. She is right to say so. But for her being pregnant and then giving birth to her children, she would have been at work and not on maternity leave. However, this brings us to a consideration of the reason why the claimant was treated as she was.

[177]The Tribunal returns to Geldart. In this case, the complainant was a serving police constable in the City of London Police. Reading from the head note of the report of the case, when she went on maternity leave, she was initially paid the full occupational maternity pay, supplemented by a London Allowance, but for the last weeks of her maternity leave she received no pay and no London Allowance. She made a complaint to the Tribunal of direct sex discrimination under section 13 of the 2010 Act contending that the non-payment of London Allowance was less favourable treatment because of maternity. The City of London Police Commissioner considered that the London Allowance was pay, and that Mrs Geldart was only entitled to receive it to the same extent that she was entitled to receive ordinary maternity pay. She therefore only received the London Allowance for a period of 18 weeks.

[178]The Commissioner understood that the London Allowance was a form of pay and therefore only payable if the employee was ready and willing to work. The reason why the complainant was not paid except for the first 18 weeks was that she was unavailable for work. However, on its proper construction, the relevant provision in the Police Regulations 2003 was payable for the entirety of her maternity leave period. It was the Commissioner’s mistaken construction of the relevant regulations which led to Mrs Geldart being paid only for the first 18 weeks.

[179]At [57], Underhill LJ said that “Conventionally the definition of “direct discrimination” in section 13(1) of the 2010 Act is analysed as comprising two elements –(1) whether the claimant received less favourable treatment than the 10.5 Reserved judgment with reasons – rule 61 34 March 2017 appropriate comparator (the “less favourable treatment”) issue and

(2) whether the less favourable treatment was because of the relevant protected characteristic (the “reason why” issue). However, it has long been recognised that these are two aspects of what is essentially a single question. The locus classicus is paras 7 to 11 of the speech of Lord Nicholls of Birkenhead in Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] ICR 337

. At para 8, having identified those two questions, he says: “No doubt there are cases where it is convenient and helpful to adopt this twostep approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.” Lord Nicholls goes on at para 11 to point out that: “Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.”

[180]Underhill LJ then goes on at [58] of Geldart to say that “The correct approach to the reason why issue is also well established. The most authoritative statement is in para 64 of the Judgment of Baroness Hale of Richmond JSC in R(E) v Governing Body of JFS (United Synagogue Intervening)

[2010] 2 AC 728

(“the Jewish Free School case”). The ultimate question is “what caused the treatment in question?” But as Lord Nicholls observed at para 29 of his speech in Chief Constable of West Yorkshire Police v Khan

[2001] ICR 1065

, “causation is a slippery word.” Answering the causation question in this context may involve two different kinds of inquiry. In the straightforward case the putative discriminator will have overtly applied a criterion based on the protected characteristic. But in other cases, although the ostensible criterion is something else, the putative discriminator may still have been influenced in his or her decision by the proscribed factor, consciously or unconsciously: in such case it is necessary to examine their mental processes to establish what caused them to act as they did. In the jargon of discrimination lawyers the former are sometimes described as “criterion cases” and the latter are “motivation cases.” The distinction is not black and white, but it is a useful working tool.”

[181]At [64] Underhill LJ said that “It is true that the Commissioner’s belief that the London Allowance fell to be treated as “pay” under the regulations was mistaken. But that does not affect the analysis of the reason why he did not pay it after the first 18 weeks. The focus must be on the criterion that he applied, rightly or wrongly.”

[182]He goes on at [65] to say that “On the basis of that conclusion, the direct discrimination fails whether or not the claimant was obliged to identify a comparator: she loses straightforwardly on the basis that the treatment complained of was not because of her sex (or, applying Webb v EMO, because of her maternity absence). But in fact, as Lord Nicholls says in Shamoon, that finding also necessarily answers the less favourable treatment question: on the Commissioner’s misunderstanding that London Allowance fell to be treated as a form of pay, it would not have been paid to a man who was unavailable to work for 23 weeks in circumstances not covered by an express provision.” 10.5 Reserved judgment with reasons – rule 61 35 March 2017

[183]Geldart was therefore a “criterion case.” The City of London Police Commissioner applied the relevant criterion for entitlement to the London Allowance. He did so incorrectly. True it is that but for the complainant being on maternity leave, she would not have suffered the treatment that she did. However, the reason why she was treated as she was is not the fact that she was on maternity leave but rather because of the Commissioner’s misunderstanding of the the relevant regulations. Her maternity was not the reason why the London Allowance ceased to be paid. There was no suggestion that this was a “motivation case” whereby the City of London Police Commissioner was influenced, consciously or subconsciously, by the claimant being on maternity

[184]At [72] Underhill LJ refers to Interserve FM Limited v Tuliekyte

[2017] IRLR 615

. In this case, the employer had a policy of automatically treating employees who had not received any pay for the last three months as “leavers”. This meant that they were sent P45s. The claimant took maternity leave, but her earnings were too low to entitle her to statutory maternity pay. The leavers policy was applied due ot her non-receipt of pay, and she received her P45.

[185]The Employment Appeal Tribunal held that the Employment Tribunal erred in finding that the automatic consequence of applying the policy was to treat the claimant unfavourably because she was absent on maternity leave. As Underhill LJ says at [72] “Simler J ([EAT] President) [as she then was] held - plainly correctly – that the correct approach to the question of whether the treatment complained of was “because of” the proscribed factor was the same in the context of section 18 [of the 2010 Act] as in that of section 13 and she referred to para[graph] 15 of her judgment to para 64 of the judgment of Baroness Hale JSC in the Jewish Free School case. At paras 19 to 20 she observed that “the mere fact that a woman happens to be on maternity leave when unfavourable treatment occurs is not enough to establish direct discrimination … She held that the claimant had plainly not been treated in the way that she was because of any “criterion” applying specifically to women on maternity leave: the policy applied to anyone absent unpaid for three months. The only way that direct discrimination could be established was if it could be shown that the mental processes of the manager in question had been significantly influenced, consciously or unconsciously, by the claimant being on maternity leave, in other words that this was (in my shorthand) a" motivation case”: see para 28 … [Interserve FM Limited] is another case where the correct characterisation of the reason for the treatment complained of was not the claimant’s maternity absence but simply her absence (coupled with her non-receipt of any pay).”

[186]On the facts of this case, the treatment of Mrs Parry was because of the application of the criteria in the CSCS. There was no suggestion that the criteria applied specifically to women on maternity leave and not others. There is no suggestion or evidence that the mental processes of those applying the criteria have been significantly influenced, consciously or subconsciously, by the claimant being on maternity leave. There was nothing from which such an inference could be drawn. This is not a motivation case. It was a criteria case.

[187]Those dealing with Mrs Parry’s case were applying the criteria (in particular the criterion at clause 12.1.4(2) of the VES) by treating unpaid maternity absence the same as any other period of unpaid leave. MyCSP emailed Laura Robinson of the VES operations team to that effect and she in turn relayed their message to the claimant on 18 October 2023 (page 105). When the claimant pushed back 10.5 Reserved judgment with reasons – rule 61 36 March 2017 on this, Laura Robinson made enquiries. She then emailed the claimant on 16 November 2023 (page 152). She confirmed that the reckonable service used for the purposes of calculation of the Voluntary Exit Compensation scheme is defined by the CSCS rules rather than the respondent’s maternity leave policy. She referred to the rules as defining which service qualifies as reckonable service. Laura Robinson’s was influenced by what she had been told by MyCSP who (as Mr Spain explains in paragraph 27 of his witness statement) produce the compensation quotes. They do so by applying the CSCS criteria. The application of the CSCS to the claimant’s circumstances was also confirmed during Rebecca Taylor’s investigation into matters and was what motivated Mr Walker’s decision making when he decided Mrs Parry’s grievance. There was no suggestion put by the claimant to Mr Walker that he was somehow motivated by the claimant being on unpaid maternity leave (as opposed to another kind of unpaid leave) as the motivation for deducting the periods of unpaid leave from the claimant’s reckonable service and treating her less favourably than a man on unpaid sick

[188]The reason why the claimant was treated as she was the application of the VES criteria. Those on unpaid leave for whatever reason, male or female, are treated the same.

[189]The claimant also raised as a point the first two weeks following the birth of her baby during the first period of maternity absence was taken as compulsory maternity leave. Her argument was that only women would find themselves in the position of being refused permission to work by reason of childbirth. There can, of course, be no argument with that proposition.

[190]The difficulty for the claimant upon this issue is that as a matter of fact and of causation, she elected (as is her right) to remain on maternity leave until 29 April 2013. That was 26 weeks of ordinary maternity leave (including the two weeks of compulsory maternity leave), 13 days which the respondent required her to take as maternity leave between her due date and her son’s birth, and 15 weeks of additional maternity leave. As a matter of causation therefore the relevant period of two weeks compulsory maternity leave was simply subsumed within the period of ordinary maternity leave anyway. She was not refused a return to work by the respondent because of their statutory obligation to impose two weeks’ compulsory maternity leave. (For the other two periods of compulsory maternity leave, the claimant was paid contractual maternity pay anyway).

[191]More generally, it is of course possible for a woman to wish to return to work within two weeks of the birth of her baby and to elect not to take ordinary maternity leave. The employer would be obliged (on pain of criminal sanction) to refuse to allow her to return to work. It is possible for her to be on unpaid ordinary maternity leave if she is short of the qualifying service for statutory maternity pay and therefore be financially motivated to return to work.

[192]The Tribunal agrees with Mr Tolley that this is a complaint in reality about the structure of the legislation. Further, it is difficult to see how a complaint in those circumstances could lie against the employer who has a statutory obligation to refuse the woman the right to work. The employer would be acting pursuant to a statutory enactment and therefore would appear to have a defence under schedule 23 of the 2010 Act on that basis.

[193]A man suspended from work on other grounds (such as those in section 64 of the Employment Rights Act 1996) has a right to receive remuneration provided 10.5 Reserved judgment with reasons – rule 61 37 March 2017 he has been employed for not less than one month ending with the day before that on which the suspension begins. Whether a female employee with no entitlement to contractual or statutory maternity pay during the two weeks compulsory suspension period may be able to pursue such a complaint under the 2010 Act is a matter for another case where such arises. (The statutory enactment defence would appear to be an insurmountable obstacle to such a claim). The fact is that in this case, Mrs Parry did not suffer any adverse consequences because of section 72 of the 1996 Act as a matter of causation as during the first maternity leave period she elected to take the full period of ordinary maternity leave and a significant part of her entitlement to additional maternity leave anyway.

[194]The Tribunal’s conclusions therefore are:  The CSCS is an occupational pension scheme for the purposes of section 212(1) of the 2010 Act.  The Maternity Equality Rule in section 75 of the 2010 Act operates to exclude section 39(2) from applicability to the operation of the CSCS (that being an occupational pension scheme). The claimant’s only remedy is for any breach of the Maternity Equality Rule under the provisions in sections 75 and 76.  The Maternity Equality Rule applies only to periods of paid maternity absence. By section 75(10) receipt of SMP is treated as being paid by the employer so as enable the employee to benefit from the Rule. Unpaid leave by necessary implication is not treated as being paid to attract the protection of the Rule.  The discounting of periods unpaid maternity leave involves no breach of the Maternity Equality Rule. The relevant provisions of the CSCS treat time when a woman is on unpaid maternity leave the same as it treats time when she is not but is taking another kind of unpaid leave. Unpaid maternity leave is treated in the same way as other periods of unpaid  The woman has no entitlement to be treated better after exhausting her right to paid maternity leave than would be the case if she was otherwise not entitled to pay by virtue of a Maternity Equality Rule.  The claimant had no entitlement to accrue reckonable service if absent on unpaid leave for a reason other than maternity. So too, a man on unpaid sick leave (perhaps having exhausted his sick pay entitlement) whose treatment may legitimately be compared with hers would likewise receive no pay and no accrual of reckonable service.  Accordingly, there has been no breach of the Maternity Equality Rule.

[195]For the sake of completeness, even if the Tribunal is wrong to conclude that this is a case to which the Maternity Equality Rule applies to the exclusion of section 39(2) and that section 39(2) does apply, there is no suggestion that a man on unpaid leave would be paid remuneration or credited with reckonable services in circumstances where a woman absent on unpaid maternity leave would not. The Tribunal again refers to [62] of Geldart.

[196]Of course, no male comparator is required upon a complaint of pregnancy or maternity discrimination under section 18 of the 2010 Act. The question is 10.5 Reserved judgment with reasons – rule 61 38 March 2017 whether there has been unfavourable treatment of the woman in those circumstances. Unfavourable treatment is that which an employee would consider to be to her disadvantage such as to engage section 39(2).

[197]The word ‘unfavourable’ in section 18 of the 2010 Act is also used in section 15 in the context of unfavourable treatment for something arising in consequence of disability. Parliament chose to use the words “treats unfavourably” in section 15 rather than the words “disadvantaged” or “detriment”. In Williams v Trustees of Swansea University Pension and Assurance Scheme and another

[2019] ICR 230

, SC Lord Carnworth held that little is to be gained by seeking to draw narrow distinctions between the words “unfavourable treatment” and analogous concepts of “disadvantage” or “detriment” found in other provisions of the 2010 Act. (That said, the claim in Williams failed as there was nothing intrinsically unfavourable to the claimant about the award to him of a pension based not on his full-time salary but rather on his part time salary before he took ill health retirement).

[198]There is no basis to treat the concept of unfavourable treatment in section 18 any differently to in section 15. In Mrs Parry’s case, there is nothing intrinsically unfavourable in paying her nothing, where she is not in a position to work or available for work after exhausting the pay protections of contractual and statutory maternity leave. She may want to be paid, of course, but can no more reasonably complain of being treated unfavourably by not being paid anything while unable to work than can anyone else in that position. Non-payment was not therefore unfavourable treatment, it not being something that may reasonably be thought to be disadvantageous to the claimant in the circumstances. That the woman has no right to be paid while unable to work and is in a special position needing protection is the reason for the introduction of statutory maternity pay as was explained in paragraphs 107 and 131 above.

[199]Accordingly, a complaint brought under section 18 when read with section 39(2) of the 2010 Act would also fail (as would one of direct discrimination under section 13 when read with section 39(2) if an action under section 13 could be maintained).

[200]In her helpful closing submissions, Mrs Parry spent a little time complaining about what she perceived to be the unfairness and inequity of discounting periods of unpaid maternity leave from reckonable service. Mr Tolley responded that there is no need for the respondent to show a reason why unpaid leave is discounted (for all). It is probable that this has its roots in the work/wage bargain and that an employee not ready and able to work is not entitled to receive remuneration from the employer. It is well known that an employee who treats all employees badly generally will not discriminate. The Tribunal is not saying that this employer treated their employees badly. This observation is just in recognition that what employees may perceive to be an unfair position is not necessarily a discriminatory one.

[201]Turning to the issues as identified by Employment Judge Ayre on 6 December 2024, the Tribunal holds: 201.1. That the CSPS is an occupational pension scheme for the purposes of section 75 of the 2010 Act 10.5 Reserved judgment with reasons – rule 61 39 March 2017 201.2. The respondent did not discriminate against the claimant contrary to section 75 of the 2010 Act by treating any of the claimant’s periods of unpaid maternity leave as non-reckonable service. 201.3. Accordingly, Mrs Parry’s complaint stands dismissed. Approved by