Pregnant Employees Must Be Treated Favourably... But Not Too Favourably

In Eversheds v De Belin UKEAT/0352/10, the Employment Appeal Tribunal (EAT) held that the protections for employees who are pregnant or on maternity leave do not extend to artificially inflating their scores in a redundancy selection exercise.  

Mr De Belin and Ms Reinholz were in a redundancy selection pool of two.  One of the selection criteria was difficult to calculate for Ms Reinholz because she was on maternity leave and so Eversheds automatically granted her the highest score for the measure in question.  The result was that Mr De Belin achieved a lower score overall and was made redundant.  He brought claims for sex discrimination and unfair dismissal. 

The EAT upheld his claims.  It said that while the Sex Discrimination Act 1975 (now consolidated in the Equality Act 2010) permitted "special treatment afforded to women in connection with pregnancy or childbirth", this is limited to treatment that is reasonably necessary to compensate women for the disadvantage occasioned by their condition.   In this case, scoring the colleague on maternity leave in such a way was disproportionate as there were alternative ways to calculate the score without disadvantaging Mr De Belin (for example, by calculating this particular selection criterion as at a prior date when both employees were at work).

This is a warning to employers that, while employees on maternity leave should be treated with care, such treatment should go no further than is reasonably necessary to protect their condition.  When applying selection criteria, an employer should not automatically give women on maternity leave more favourable scores; attempts must be made to assess them despite the fact they are absent from work.