The EAT has upheld the employment tribunal’s finding in Eversheds Legal Services Ltd v De Belin that Eversheds discriminated against a male employee on the ground of his sex when it artificially inflated a female employee’s score to credit her with maximum points whilst she was on maternity leave in the context of a redundancy scoring exercise.

Mr De Belin had been placed in a pool selected for potential redundancy along with his colleague Ms Reinholz. One of the criteria applied for was ‘lock up’ which measures the time between completing work and receiving payment for it. Mr De Belin was given his actual score whereas Ms Reinholz, who was on maternity leave, was awarded the notional maximum score so as not to disadvantage her.

The EAT agreed with the tribunal that Mr De Belin had been discriminated against and noted that employees on maternity leave cannot be favoured more than is reasonably necessary to compensate them for the disadvantages caused by their pregnancy/ being on maternity leave. ‘Special treatment’ must be a proportionate means of achieving the legitimate aim of ensuring that a woman on maternity leave does not suffer a disadvantage. Eversheds should have used other, less discriminatory, means of removing Ms Reinholz’s disadvantage. It could have measured lock-up at the date of Ms Reinholz’s last day at work, therefore using periods when the staff in the pool were actually at work.

This poses a conundrum for employers who are accustomed to taking measures to ensure employees on maternity leave suffer no disadvantage. Are the steps taken to achieve this ‘proportionate’ and could alternative measures be taken?