Clark & Anor v Chief Constable of Derbyshire Constabulary & Ors

Factual and Procedural Background

This appeal concerns whether an employment tribunal has jurisdiction under the Equality Act 2010 ("the 2010 Act") to determine complaints alleging that regulation 12 of the Police (Injury Benefit) Regulations 2006 ("the 2006 Regulations") governing payment of a disablement gratuity to former police officers gives rise to unlawful discrimination. A disablement gratuity is payable if a police officer is injured in the execution of duty, ceases to be a member of a police force, and within 12 months of the injury becomes totally and permanently disabled as a result.

The appellants, referred to as Plaintiff 1 and Plaintiff 2, were former police officers injured in the execution of duty. Their permanent and total disablement occurred more than 12 months after their injury, disqualifying them from entitlement to the disablement gratuity. They brought complaints before an employment tribunal alleging that the 12-month requirement constituted discrimination contrary to sections 15 or 19 of the 2010 Act. The respondents are the chief constables of the police forces previously employing the appellants and the Secretary of State responsible for the 2006 Regulations.

The employment tribunal initially held it had jurisdiction under section 61 of the 2010 Act, considering the 2006 Regulations to be an occupational pension scheme, but not under section 108. On appeal, the Employment Appeal Tribunal ("the EAT") reversed this, holding the tribunal lacked jurisdiction as the 2006 Regulations did not constitute an occupational pension scheme under section 61, and dismissed the cross-appeal on section 108 jurisdiction. The appellants were granted permission to appeal on two grounds relating to the definition of occupational pension scheme and the meaning of "pay" under EU law. They later sought permission to add a third ground concerning jurisdiction under section 108.

Legal Issues Presented

1. Whether regulation 12 of the 2006 Regulations constitutes an "occupational pension scheme" within the meaning of section 1 of the Pension Schemes Act 1993 and section 61 of the 2010 Act.
2. Whether the disablement gratuity under regulation 12 qualifies as "pay" under European Union law, affecting the interpretation of section 61 jurisdiction.
3. Whether the employment tribunal has jurisdiction under section 108 of the 2010 Act to hear complaints alleging discrimination related to the disablement gratuity after the end of the employment relationship.
4. Whether permission should be granted to amend the grounds of appeal to include the issue of jurisdiction under section 108.

Arguments of the Parties

Appellants' Arguments

• Regulation 12 should be considered an occupational pension scheme because benefits are payable only after cessation of police service, thus triggered "on retirement or termination of service".
• The phrase "capable of having effect" in the 1993 Act supports a broad and liberal interpretation, including regulation 12 within occupational pension schemes.
• The legislative history indicates the 2006 Regulations, including disablement gratuities, were originally part of pension schemes and separated only for tax reasons.
• Section 108 of the 2010 Act applies because the alleged discrimination arises out of and is closely connected to the former employment relationship, involving access to benefits or detriment.
• Permission to amend the grounds of appeal to include section 108 jurisdiction should be granted as the issue is purely legal, undisputed on facts, and no prejudice arises to respondents.

Respondents' Arguments

• Section 1 of the 1993 Act defines occupational pension schemes as those providing benefits "on" retirement, reaching a particular age, or termination of service; regulation 12 does not provide benefits on these events but upon satisfying conditions including injury and disablement.
• The disablement gratuity is not payable on retirement or termination as no causal link is required between cessation of service and disablement; entitlement may arise after service has ceased.
• The words "capable of having effect" clarify the definition but do not extend it to benefits payable under different conditions such as total and permanent disablement after injury.
• The disablement gratuity does not constitute "pay" under EU law, and the employment tribunal lacks jurisdiction under section 61 accordingly.
• The complaint does not fall within section 108 as the conduct complained of could not have occurred during the employment relationship, and the payments are welfare benefits under a statutory scheme rather than employment benefits.
• Permission to amend to add section 108 jurisdiction ground should be refused due to lateness and lack of prior argument before the EAT.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Parlett v Guppys (Bridport) Ltd (No 2) [2000] Pensions LR 195	Occupational pension schemes should be interpreted liberally, not restrictively.	Referenced for the proposition that occupational pension schemes encompass benefits payable on retirement; court found it did not assist in this case as the scheme here did not provide benefits on retirement or termination.
Westminster City Council v Haywood [1998] Ch. 377	Wide definitions of occupational pension schemes and distinction between pension and severance schemes.	Used to illustrate that the definition is wide but the case concerned benefits payable on termination; court found it not helpful for the current issue.
City and County of Swansea v Johnson [1999] Ch. 189	Benefits provided on termination of employment due to injury can constitute an occupational pension scheme.	Cited to show that benefits payable on termination due to injury may fall within the definition, but the court distinguished the present case on the basis of timing and conditions for entitlement.
Singh v Dass [2019] EWCA Civ 360	Guidance on the test for granting permission to amend pleadings late in proceedings.	Applied in assessing whether to allow the appellants to amend their grounds of appeal to include section 108 jurisdiction.
Notting Hill Finance Ltd. v Sheikh [2019] EWCA Civ 1337	Considerations for balancing injustice and prejudice when permitting late amendments.	Used to weigh factors for and against permitting the amendment to the grounds of appeal.
Nesbit Law Group LLP v Acasta European Insurance Company Limited [2018] EWCA Civ 268	Heavy burden on appellants to justify late amendments.	Referenced in the context of the late application to amend the grounds of appeal.
Rowstock Ltd v Jessemey [2014] EWCA Civ 185	Interpretation of discrimination arising out of and closely connected to former employment relationships under section 108.	Relied upon to support the appellants' argument that section 108 applies to discrimination connected to former employment relationships.
Rhys-Harper v Relaxion Group plc [2003] UKHL 33	Interpretation of discrimination provisions relating to former employees.	Discussed in relation to the scope of section 108; the court distinguished the differently worded legislation in Rhys-Harper from the 2010 Act.
R (O) v Secretary of State for the Home Department [2022] UKSC 3	Principles of statutory interpretation focusing on words in context and purpose.	Applied to interpret the definitions in the 1993 Act and the 2010 Act provisions.
R v Secretary of State for Environment, Transport and the Regions, ex p. Spath Holmes [2000] UKHL 61	Statutory interpretation principles.	Applied to support the approach to interpreting statutory definitions.
R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38	Use of explanatory notes as an aid to statutory interpretation.	Referenced to justify reliance on explanatory notes to understand section 108's purpose.

Court's Reasoning and Analysis

The court undertook a detailed statutory interpretation of the phrase "occupational pension scheme" in section 1 of the Pension Schemes Act 1993, as incorporated by section 61 of the Equality Act 2010. The analysis focused on the timing and triggering event for entitlement to benefits. The court concluded that the key statutory language requires benefits to be payable "on retirement" or "on termination of service," meaning that the event of retirement or termination must be the trigger for entitlement.

Regulation 12 of the 2006 Regulations requires three conditions for payment: injury in the execution of duty without fault, cessation of police service, and permanent and total disablement within 12 months of injury. The court noted that cessation of service need not be causally linked to the injury or disablement and may precede the disablement by some time. Therefore, the entitlement does not arise "on retirement" or "on termination of service" but upon the occurrence of disablement, which may occur after cessation.

The court rejected the appellants' argument that the phrase "capable of having effect" broadens the definition to include regulation 12, concluding that this phrase clarifies the definition but does not extend it to benefits payable on events other than those specified. The court also found that precedents cited by the appellants did not assist because those cases involved benefits triggered by retirement or termination, unlike the present case.

Regarding section 108 of the 2010 Act, the court interpreted the provision as prohibiting discrimination after the end of a relationship if the conduct arises out of and is closely connected to that relationship and would have contravened the Act had it occurred during the relationship. The court held that the alleged discrimination concerning the disablement gratuity falls within this scope because it is closely connected to the former employment relationship and involves conduct of a kind that would be unlawful during employment.

The court granted permission to amend the grounds of appeal to include the section 108 jurisdiction issue, balancing the lateness of the application against the absence of prejudice to respondents and the legal nature of the issue. It reasoned that considering section 108 jurisdiction first was sensible, as a successful finding there would render the EU law "pay" issue unnecessary.

Consequently, the court allowed the appeal on the ground that the employment tribunal has jurisdiction under section 108 but dismissed the ground that regulation 12 constitutes an occupational pension scheme under section 61. It did not address the EU law "pay" ground substantively, as it was rendered moot by the section 108 ruling.

Holding and Implications

The court's final decision is to ALLOW THE APPEAL on the basis that the employment tribunal does have jurisdiction under section 108 of the Equality Act 2010 to hear complaints alleging discrimination related to regulation 12 of the 2006 Regulations.

The court held that regulation 12 does not constitute an occupational pension scheme under section 61 of the 2010 Act, so jurisdiction under that provision is not available. However, jurisdiction exists under section 108 because the alleged discrimination arises out of and is closely connected to the former employment relationship and involves conduct that would be unlawful if it occurred during employment.

The court granted permission to amend the grounds of appeal to include the section 108 jurisdiction issue despite the lateness of the application, emphasizing the absence of prejudice to respondents and the purely legal nature of the issue.

The decision clarifies the scope of employment tribunal jurisdiction in discrimination claims involving benefits payable after employment ends. It does not establish new precedent on the merits of the discrimination claims themselves, which remain to be determined by the employment tribunal. The court expressly noted that its ruling does not imply any view on whether the 12-month rule constitutes unlawful discrimination or any justification defenses that may be raised.