In this case, a male employee (A) had been one of two solicitors employed in a team. The other solicitor (B) was on maternity leave when the employer decided that one of them was to be made redundant. The employees were scored against various criteria including being measured for the length of time between completion of their work and receipt of payment from the client. As B could not be measured for this, she was simply awarded the maximum score for that criterion. In light of their scores, the decision was taken to retain B and dismiss A.
A brought a claim for sex discrimination, in defence of which the employer argued that its treatment of B had been special treatment which it was required to give under the Sex Discrimination Act 1975. The EAT held that the protection of employees who were pregnant or on maternity leave did sometimes require them to be afforded treatment which was more favourable than that afforded to colleagues (positive discrimination).
However, that obligation only extended to favouring pregnant employees or those on maternity leave to a degree that was reasonably necessary to compensate them for the disadvantages occasioned by their condition. If treatment goes beyond what is reasonably necessary for that purpose, then a real injustice might be done to a colleague. In this case, the advantage given to B was disproportionate and had meant a direct and unfair corresponding disadvantage to A. It did, therefore, constitute sex discrimination.
The employer should have used less discriminatory alternatives, for example it could have compared the employees’ performance during the time that they were both off work (before B went on maternity leave).
Eversheds Legal Services v De Belin