Employers undergoing a redundancy exercise are often faced with the problem of having to apply selection criteria to an employee who is absent on maternity leave.  How should such an employee be scored? What if a particular criterion is measured by reference to something which in their circumstances cannot be measured, such as their performance against target?  As we have seen from the recent EAT decision in Eversheds Legal Services Ltd v De Belin (2011), this was precisely the dilemma faced by Eversheds whilst undertaking a redundancy exercise in its real estate investor team.  The decision had been taken to make one person redundant, but there were only two associates in the team, one male and one female.

At the time the scoring was to be undertaken, the female employee was on maternity leave, and had been absent for some six months.  One of the criteria on which the two candidates were being measured was a performance related matter, but there was no relevant data for the female employee because of her absence on maternity leave.  The employer awarded her the maximum score, in accordance with its internal policies.  This was sufficient to give her the edge over Mr De Belin, who was subsequently declared redundant.  As a result, he sued his former employer, alleging that its policy of awarding maximum points to his rival amounted to direct sex discrimination because it meant that there were, in effect, two different scoring methods being used. His claim succeeded.  Eversheds argued in its defence that the legislation (the Sex Discrimination Act 1975) stated that any 'special treatment' afforded to women in connection with pregnancy and childbirth should be ignored.  However, whilst the EAT accepted that the legislation effectively required employers to give favourable treatment to employees who are pregnant or on maternity leave, it took the view that this had to be subject to proportionality - it would not be appropriate to favour such an employee more than was 'reasonably necessary' to compensate her for the disadvantages caused by her pregnancy/maternity leave.

An employer is now faced with a new dilemma: if the special treatment afforded to an employee who is pregnant/on maternity leave does not go far enough to protect her, she will complain of sex discrimination; but if it goes too far, the employer will potentially face a claim from someone who is not pregnant/on maternity leave.  It remains to be seen how wide the target area in between will be...