In De Belin v Eversheds Legal Services the Employment Appeals Tribunal (EAT) held that when scoring redundancy candidates against selection criteria based on performance, it may be unlawful to use a period when a woman is on leave and simply give her the maximum score. Employers must consider whether alternative approaches could ensure that a female employee is not disadvantaged without injustice to male employees.

Although it is unlawful to treat a woman more favourably than a man, "special treatment" in connection with pregnancy or childbirth is expressly excluded from the prohibition. The EAT has ruled that special treatment is lawful only if it goes no further than is reasonably necessary to compensate for the disadvantages due to pregnancy or maternity leave.

An employer chose to use a criterion based on performance over a reference period. One of two employees in the selection pool was on maternity leave during this period. The employer automatically awarded her the maximum score for that criterion, while giving the other employee his actual score. Solely because of this, the male employee scored lower and was selected for redundancy.

The EAT ruled that the employer's special treatment had gone further than was reasonably necessary - it could instead have measured performance over a period up to the women's last day of work (using the same period for the other employee). In this case there was no reason to suppose that using an earlier date would have been a less reliable indicator of the relevant skill level. Another option would have been to omit the criterion in question altogether. As the other employee was male, he succeeded in claiming unlawful sex discrimination.

Unless appealed further, this ruling may have significant implications for employers - and not only in relation to redundancy criteria. Employers will have to ensure that they do not treat employees who are pregnant or on maternity leave more favourably than is reasonably necessary in relation to issues such as work allocation or hours during pregnancy and pay during leave periods.

For further information on this topic please contact Andrew Brown at Herbert Smith LLP by telephone (+44 20 7374 8000), fax (+44 20 7374 0888) or email ([email protected]).