Eversheds Legal Services Limited v De Belin UKEAT/0352/10  

A law firm was held to have discriminated against Mr De Belin, a male lawyer on the grounds of his sex when in a redundancy exercise he scored just below the score of a female colleague who was then on maternity leave.  The firm had decided to award the female employee a notional maximum score with regard to lockup while limiting Mr De Belin to his actual score.   

The result of this was that he scored lower than the female employee and was therefore selected to be made redundant.  Mr De Belin succeeded with his direct sex discrimination and unfair dismissal claims.  The firm appealed and the EAT upheld the tribunal’s decision that he had been discriminated against but the firm was successful in its claim that Mr De Belin’s compensation should have been reduced because he would in any event have been made redundant fairly and in a non-discriminatory way in another redundancy exercise in a matter of months later (as the female employee was).   

On appeal Eversheds argued that under section 2(2) of the Sex Discrimination Act 1975 in assessing whether actions are sex discriminatory against a man “no account should be taken for special treatment afforded to women in connection with pregnancy or childbirth”.  The Court found that such employees could not be favoured more than is reasonably necessary to compensate them for the disadvantages occasioned by their condition.  Section 2(2) had to be read as protecting employers only where the treatment is a proportionate means of achieving the legitimate aim of compensating a woman for the disadvantage occasioned by her pregnancy or her maternity leave. Awarding the female employee a maximum score was not proportionate. Mr De Belin had been awarded compensation of £123,053.03.  The case was remitted to a different tribunal on the issue of whether his loss should be capped or discounted by reference to the likelihood of his being dismissed in the September 2009 redundancy round.   

Key point:  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.  That is, can the disadvantage of maternity absence be mitigated?