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Special treatment of women on maternity leave must be proportionate

08 April 2011 #Employment

The Employment Appeal Tribunal (EAT) has upheld the Tribunal`s decision in the case of Eversheds Legal Services Ltd v De Belin [2011] UKEAT, that the law firm unlawfully discriminated again a male associate on the grounds of his sex by favouring a female colleague on maternity leave in a redundancy scoring exercise.
The Claimant, Mr De Belin, was one of two associates working in Eversheds` Leeds office as part of their Real Estate Investor Team.  His colleague, Ms Reinholz, was on maternity leave when the firm identified that one of the two associates` roles would have to be made redundant.
Mr De Belin and Ms Reinholz were scored against various performance criteria.  One such criterion was "lock up", which measures the length of time between the associate completing a piece of work and receiving payment for it from the client.  As Ms Reinholz was on maternity leave at the measurement date for lock up, Eversheds awarded her the maximum score for this criterion.  In total, Mr De Belin scored half a point less than Ms Reinholz and was selected for redundancy.  Had Ms Reinholz not been given the maximum score on lock up, there would have been either a tie or she would have scored less than Mr De Belin.  Mr De Belin brought a claim of direct sex discrimination.
Eversheds defended their scoring policy on the basis that the Sex Discrimination Act 1975 (in force at the relevant time) excludes from the definition of sex discrimination cases of "special treatment afforded to women in connection with pregnancy or childbirth."  They argued that, since it was possible that, had Ms Reinholz not been on maternity leave, she would have performed sufficiently well on lock up to score the maximum points, awarding her anything less than the maximum would mean that she might have lost out by reason of her absence on maternity leave. 
The EAT acknowledged that the protection of the special position of employees who are pregnant or on maternity leave may sometimes require them to be afforded special treatment which is more favourable than that accorded to their colleagues (other women as well as men); however, such treatment cannot extend to favouring pregnant employees, or those on maternity leave, beyond what is reasonably necessary to compensate them for the disadvantages occasioned by their condition.  There were alternative ways of removing maternity-related disadvantage to Ms Reinholz without unfairly disadvantaging Mr De Belin.  The EAT suggested that Eversheds should have measured lock up performance of both the candidates for redundancy at the last date on which Ms Reinholz was at work before her maternity leave.

In light of this decision, employers should identify any special treatment afforded to women on maternity leave and consider whether there are more proportionate ways of removing disadvantage.  Simply giving women on maternity leave the benefit of the doubt in assessments may result in successful claims of sex discrimination from male employees who lose out as a consequence, and may render processes unfair overall.

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