The EAT has held in Eversheds Legal Services Ltd v De Belin that favouring a woman on maternity leave in a redundancy scoring exercise amounted to sex discrimination against a man in the selection pool. The EAT confirmed that pregnant employees and those on maternity leave should only be treated more favourably than male colleagues to the extent that is reasonably necessary to remove any disadvantage to them caused by their pregnancy/maternity leave.
Mr De Belin was placed in a selection pool for redundancy with a female colleague, who was on maternity leave. The two were scored against five criteria, one of which involved a measurement of the time which elapsed between completing a piece of work and receiving fees for it, known as lock-up. As the female employee had been absent on maternity leave throughout the duration of the period under review, the employer awarded her the full two marks for this criterion. Mr De Belin was awarded the minimum 0.5 points, based upon his lock-up during the review period. Overall, the female employee had 0.5 points more than Mr De Belin, and so he was dismissed as redundant.
Mr De Belin brought claims of sex discrimination and unfair dismissal. Had Eversheds assessed the female employee's lock-up based upon the period before she commenced her maternity leave, she too would have been awarded 0.5 points. Overall, therefore, Mr De Belin would have had a higher score and would have avoided redundancy on this occasion.
The EAT held that the obligation to protect employees who are pregnant or on maternity leave cannot extend to favouring such employees beyond what is 'reasonably necessary to compensate them for the disadvantages occasioned by their condition'. Where a particular type of treatment or action is disproportionate, a disadvantaged colleague may claim sex discrimination. That was the case here, as there were less discriminatory alternatives available to deal with the situation. For example, Eversheds could have scored the performance of both employees when the woman on maternity leave was last at work. Mr De Belin's claims for sex discrimination and unfair dismissal therefore succeeded.
Impact on employers
- This case highlights that employers should not necessarily assume that favouring employees on maternity leave is the safest option in terms of vulnerability to claims – going too far in this respect can expose an employer to sex discrimination claims from disadvantaged male employees.
- Employers must assess the ways in which any disadvantage suffered by employees on maternity leave can be mitigated, rather than automatically favouring the female employee above others. The key is to achieve a balance between the rights of employees on maternity leave on the one hand, and the rights of men not to be discriminated against on the other.
- Employers should note that employees made redundant during a period of maternity leave do still have priority to any suitable alternative employment, over other redundant employees.