Employment Tribunal strike blow to protection for those on maternity leave

1 July 2012

It was held in Eversheds Legal Service Ltd v De Belin that in selecting an employee for redundancy an employer had discriminated against him on the basis of his sex. In the selection of employees for redundancy a woman on maternity leave should not be afforded special treatment beyond that which is reasonably necessary to compensate her for the disadvantages occasioned by her condition. In 2008 the respondent employer had to make one out of two employees redundant, both the claimant and his female colleague, who was on maternity leave at the time, were warned that they were at risk of redundancy. They were pooled for selection and were scored against various criteria, including the length of time that each employee took to recover money from their clients. Since the claimant's colleague had not been at work for seven months due to maternity leave, this specific criterion could not be measured for her and she was awarded the maximum possible score for this area. Unfortunately, the score awarded resulted in her total scored being marginally higher that the claimant's, and consequently he was made redundant. Had she not been awarded the maximum score for that criterion the overall results would have either been level or she would have been selected for redundancy. The employer maintained it had acted correctly, its treatment of the female colleague being special treatment which is was required to give under the Sex Discrimination Act 1975, s.2(2). The claimant brought an action for unfair dismissal and sex discrimination. The EAT found in the claimant's favour, holding that whilst employees who were pregnant or on maternity leave were entitled to special treatment, this could not justify favouring such employees beyond what was reasonably necessary. Section 2(2) of the 1975 Act had to be construed in a manner which incorporated the principle of proportionality. Where the conduct of the employer in extending a benefit to a woman who was pregnant or on maternity leave was disproportionate, there was no reason why a colleague who was correspondingly disadvantaged should not be entitled to a claim for sex discrimination. The EAT decided that the means adopted by the employer to resolve the problem of the female colleague's maternity leave went beyond what was reasonably necessary and was not proportionate. A more suitable approach to removing the maternity-related disadvantage without having unfairly disadvantaging the claimant would have been to measure the criterion of both as at the last date the female colleague had been at work. It is evident that it is no longer enough just to presume that a woman on maternity leave should be given the benefit of the doubt. Although the new proportionality based interpretation of the 1975 Act is accepted to be more in line with EU law, there are issues that might be raised as to whether or not the decision will actually promote fairness. Nonetheless, as this judgment demonstrates employers must always consider whether there is an alternative approach that will ensure a less discriminatory effect. For additional information please contact Alexandra Dean of Gepp & Sons on 01245 493939. The above is not legal advice; it is intended to provide information of general interest about current legal issues.