In Eversheds Legal Services Ltd v De Belin the EAT upheld a tribunal's decision that a law firm discriminated against a male lawyer on the ground of his sex when, in a redundancy selection exercise, it inflated the score of a female colleague who was on maternity leave. Pregnant employees and those on maternity leave should only be treated more favourably than male colleagues to the extent that this is reasonably necessary to remove the disadvantages occasioned by their condition.
The employer's decision to award the female employee a notional maximum score in respect of one of the selection criteria, while confining the male colleague to his actual score, was not a proportionate means of removing the woman's disadvantage. There were less sex discriminatory alternatives available, such as measuring both employees' actual performance during the period before the woman's maternity leave started.
The employer emphasised how difficult it is for employers in circumstances such as those in the above case. In attempting to avoid discriminating against pregnant women, they can end up facing sex discrimination claims by men. The judge explained that proportionality is a flexible principle, which "will allow a wide margin of discretion to employers as to the appropriate special treatment to be accorded to pregnant employees and those on maternity leave, particularly where such advantages are not directly at the expense of their colleagues and do not cause them serious prejudice".
In the light of the EAT's decision, employers should not assume that "giving the benefit of the doubt" to an employee on maternity leave is the safest option in terms of vulnerability to claims. Employers should assess the possible ways in which the disadvantages of a maternity absence can be mitigated, rather than automatically favouring the female employee above others.