Different treatment of women taking maternity leave and men taking paternity leave is unlawful
The Police Federation for England and Wales has successfully challenged the Police Pension Schemes and Additional Voluntary Contributions (Amendment) (England and Wales) Regulations 2018.
Those Regulations provided that men who took additional paternity leave (known within the police as maternity support leave) would not be allowed to “buy back” periods of unpaid leave for pension purposes. However, women who take maternity leave are able to do so.
The Federation argued that this amounted to indirect sex discrimination and was unlawful under EU Law, specifically the TFEU, the Recast Directive, the Charter of Fundamental Rights and the general principle of equal treatment.
The Federation also argued that this was unlawful under the Equality Act 2010 and the Human Rights Act 1998 (Articles 8 and 14 of the Convention).
The Federation argued that the leave in question was not intended to protect women during and after pregnancy and childbirth, but was intended for the care of the child. Accordingly, any difference in treatment could not be justified on that basis.
On 3 July 2018, shortly before the Federation was due to issue its claim for judicial review of the Regulations, the Home Department agreed to amend the Regulations to enable officers who have taken paternity leave from 3 April 2011 to buy back that leave for pension purposes.