EAT finds that “special treatment” afforded to women in connection with pregnancy or childbirth must go no further than what is reasonable and proportionate.

In this case, the Employment Appeal Tribunal (“EAT”) upheld a Tribunal's decision that treating a woman who was on maternity leave more favourably in a redundancy scoring exercise constituted sex discrimination against a man in her selection pool.

Section 2(2) of the Sex Discrimination Act 1975 (“the SDA”) provides that no account shall be taken of ‘special treatment’ afforded to women in relation to pregnancy or childbirth, where a claim of sex discrimination is brought by a man. These provisions are to be interpreted as meaning treatment accorded to a woman so far as it constitutes a proportionate means of achieving the legitimate aim of compensating her for the disadvantages occasioned by her pregnancy or her maternity leave.

The EAT did not accept that it was reasonable for the Respondent to take the view that it had no alternative to maintaining a maximum score, unrelated to any actual merit, for an at risk employee who was absent for pregnancy related reasons. When it became clear that the score would be decisive in the choice between her and the Claimant, the alternative scoring process which the Claimant had suggested was more proportionate and would therefore have been lawful.

Implications

The Respondent highlighted before the EAT the difficult position of an employer in a case like this. The employer will face the risk of a claim of sex discrimination, whichever course it chooses. The EAT accepted this, recognising that an interpretation of section 2(2) which protected employers from liability in respect of any ‘special treatment’ afforded to women, however excessive or unfair to their colleagues such treatment might be, would provide a more distinct "bright line" for employers. However, the EAT felt that the price of such an approach would be too high. The EAT held that the well-tried and familiar test of proportionality meant that the right balance would be struck.

Employers faced with situations where a female employee will suffer an apparent disadvantage for pregnancy related reasons should put their minds to whether the “special treatment” that it might adopt to redress the balance goes no further than what is reasonable and proportionate in the circumstances. This will involve an assessment not only of the positive impact on the female employee of such treatment, but also the corresponding negative effect on her colleagues in order to, as the EAT put it, strike “the right balance”.

Background

Mr De Belin (“the Claimant”) was one of two associates working in Eversheds' Leeds office as part of their Real Estate Investor Team. The other associate was a Ms Reinholz. In September 2008, it was decided that one of the two associates in the team would have to be made redundant. The Claimant and Ms Reinholz were scored against various performance criteria. One of those criteria measured the length of time between the completion of a piece of work and the receipt of payment from the client. The measurement was performed as at 31 July 2008. The Claimant's figure was 238, giving him a score of 0.5.

Ms Reinholz was absent on maternity leave at the measurement date: she had in fact been away since 10 February 2008. This meant that the measure could not be taken for her as at that date, since she had no client files. In accordance with what was said to be the Respondent’s general policy for redundancy candidates who were absent on maternity leave or sabbatical, Ms Reinholz was given the maximum score for this criterion, which was 2.

The Claimant was selected for redundancy; but the closeness of the result meant that if Ms Reinholz had not been given the maximum score on the measurement, there would either have been a tie or she would have scored less than the Claimant and would have been the one selected for redundancy.

The Claimant raised a grievance complaining that the measurement process was unfair. He suggested alternative approaches, including measuring Ms Reinholz based on the actual figures available before she went on maternity leave. The Respondent accepted that the result might appear unfair, but rejected the Claimant’s proposals, stating that their approach was required by law in order to ensure that Ms Reinholz did not lose out by her maternity absence, and thus to avoid the risk of a sex discrimination claim from her.