In an unusual case the Employment Appeal Tribunal (“EAT”) has upheld a tribunal’s decision that favouring a woman on maternity leave in a redundancy scoring exercise was sex discrimination against a man in the selection pool.
In Eversheds Legal Services Ltd v De Belin Mr De Belin scored lower in a redundancy scoring exercise than a colleague on maternity leave who was given the maximum notional score for a criterion measuring the time between work done and payment. As a result Mr De Belin scored lower overall and was made redundant. In response to his claim of sex discrimination, Eversheds argued that the legislation contained a defence as it provided that ‘no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth’.
The tribunal interpreted ‘special treatment’ as including only ‘those rights where statutory provision has been made for pregnant women and those on maternity leave’. The protection stated by Eversheds 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’. Mr De Belin had therefore been unlawfully discriminated against on the ground of sex and unfairly dismissed. The tribunal awarded him £123,053 in compensation and Eversheds appealed to the EAT.
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 male colleague may claim sex discrimination.
The EAT concluded that Eversheds’ approach to scoring an employee on maternity leave in a redundancy selection exercise was not proportionate and went beyond what was reasonably necessary. There were alternative ways of dealing with the situation without disproportionately disadvantaging Mr De Belint, such as looking at the performance of both candidates when they were last at work. This would have enabled the employee on maternity leave to be scored on a basis that reflected her performance unaffected by her maternity absence. The appeal was therefore rejected.