The Government Legal Department discriminated against one of its staff by refusing to pay her the £1,500 cost-of-living payment last year because she was on a career break, a tribunal has ruled.
Bev Gleeson, a senior lawyer at GLD, missed out on the lump sum last July while on a six-month career break caring for disabled family members.
GLD said Gleeson was not eligible for the payment, which was issued “in recognition of the pressures felt during the 2022-23 pay year”, because staff had to be “in post” between 31 March and 31 July 2023. The department said being on a career break meant she was not in post, according to the written judgment published this week.
Gleeson’s career break began in March 2023 and was due to last until September that year.
However, civil servants on maternity leave or on sick leave during the same period were deemed eligible for the cost-of-living payment.
Gleeson challenged the decision through three claims to the employment tribunal: unlawful deduction from wages, indirect sex discrimination and indirect associative disability discrimination.
Her claims for unlawful deduction from wages and indirect sex discrimination were successful, with the tribunal describing them as “well founded”.
However, her claim for indirect associative disability discrimination – based on the argument that Gleeson was using her career break to care for her children, who have neurological conditions, and her parents, who had dementia – was dismissed.
GLD sought to justify its decision as a “proportionate means of achieving a legitimate aim” – to apply the pay remit within the guidelines set by the Cabinet Office; to “maintain consistency with the principle applying to career breaks that an employee is not entitled to pay for the duration of a career break”; and to “maintain a sufficient connection between pay and being at work, as opposed to being voluntarily away from work”.
The tribunal heard evidence from GLD’s head of pay, policy and employee relations, who said he was “not sure who had determined that career breaks should be excluded”, the judgment said.
The judgment also noted there was “no documentary evidence of emails or notes of any meeting confirming how this decision had been reached”.
The employment judge determined that GLD’s decision to exclude those on a career break “has no lawful basis”.
“There was no evidence provided by the respondent [GLD] which showed how they had come to the conclusion that those on a career break should be excluded,” the judgment said.
GLD had argued that an email from then-cabinet secretary Simon Case, which said “ministers have agreed to allow departments to make a fixed payment of £1,500”, allowed departments "discretion not to make that payment" . But the judgment said that GLD was "adding words or meaning to the Simon Case email".
It said: “The respondent’s witnesses accepted that there was nothing in the guidance document, or in the correspondence from Simon Case which stated that those on career break should be excluded. Someone at a later stage has made an arbitrary decision to exclude a group of people without any reasoning.
“This would be particularly jarring to someone who had worked in the 2022-23 year and felt the pressures referred to, but was now on a career break and missing out on the reward and recognition their colleagues had been given.”
The tribunal found that officials on a career break are still in post, noting that they are eligible for the same pay rises as staff who have worked during the same period, and that there was “no suggestion that the claimant will be removed from her role during the break and would have to apply for a new post when she returns”.
It added that "payment to someone on career break would not be incompatible with the principle that someone on career break would not be paid their salary or any normal bonuses" given that the cost-of-living lump sum was both unprecedented and non-consolidated.
Claiming indirect sex discrimination, Gleeson argued that “more women than men were likely to be carers and therefore the disadvantage was disproportionately suffered by women”. GLD disagreed with this claim.
However, the tribunal was shown statistics on career breaks showing there was a "heavy skew" towards women in the department, with 64 women and 23 men taking time away from work in 2023. This amounted to 0.034% of women and 0.024% of men in the department that year, given that GLD employs around twice as many women as men. The judgment said the difference was "high enough to be considered 'significant' and 'substantial'".
A GLD spokesperson said: “We respect this judgment and will not comment further on this case.”