In Eversheds Legal Services Ltd v De Belin the Employment Appeal Tribunal has confirmed that favouring a woman on maternity leave in a redundancy scoring was sex discrimination against a man in the same selection pool. The obligation to protect employees who are pregnant or on maternity leave does not extend to favouring such employees beyond what is 'reasonably necessary to compensate them for the disadvantages occasioned by their condition'. Where a maternity or pregnancy benefit is disproportionate because less discriminatory alternatives were available then a disadvantaged colleague may claim sex discrimination.
B, a man, scored lower in a redundancy scoring exercise than a colleague, R, on maternity leave. She was given the maximum notional score for a criterion measuring the time between work being done and payment because there were no current figures available for her because of her maternity leave. As a result, B scored lower overall, and was made redundant. In response to his claim of sex discrimination, the employer argued that a provision of the Sex Discrimination Act 1975 defeated B's claim as it says 'no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth'.
An employment tribunal interpreted 'special treatment' as including only 'those rights where statutory provision has been made for pregnant women and those on maternity leave'. The law could not have been intended to give employers blanket protection against sex discrimination claims by men, and did not protect a woman on maternity leave in a redundancy scoring exercise where she received 'an unfairly inflated score'. There were fair alternative ways of dealing with the situation without disproportionately disadvantaging B, such as looking at the performance of both candidates when they were last at work. This would have enabled R to be scored on a basis that reflected her performance unaffected by her maternity absence. Failure to do this meant that B had therefore been unlawfully discriminated against on the ground of sex and unfairly dismissed. He was awarded £123,053 in compensation. The employer appealed to the EAT.
In the EAT's view, Europena decisions show that the principle of proportionality applies to the right to 'special treatment'. Consequently, the law should be construed so as only to refer to treatment which is 'a proportionate means of achieving the legitimate aim of compensating [a woman] for the disadvantages occasioned by her pregnancy' or maternity leave.
The EAT agreed with the tribunal 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 maternity or pregnancy benefit is disproportionate, a disadvantaged colleague may claim sex discrimination. This allows a wide margin of discretion as to the appropriate special treatment for women who are pregnant or on maternity leave, yet 'captious' claims by men who resent the proper protection of women can be given 'short shrift'. Giving too wide an interpretation wide interpretation to legislation protecting pregnant women and those on maternity leave could bring it into disrepute.
Because of the fair marking system available to the employer the EAT concluded that the employer's approach to scoring an employee on maternity leave in a redundancy selection exercise was not proportionate and went beyond what was reasonably necessary. The appeal was therefore rejected.
