Sex, pregnancy and maternity discrimination

It is sex discrimination to fail to consult adequately with a woman absent on maternity leave (Blundell v Governing Body of St Andrews Catholic Primary School [2007] UKEAT/0329/06/1005). The following case is also useful:

It was sex discrimination to fail to notify employees who were on a career break of an offer of voluntary redundancy (HM Land Registry v Benson [2011] UKEAT/0197/11).

Under section 99 of the ERA 96, it is automatically unfair to dismiss an employee on the basis of pregnancy, childbirth, maternity or the taking or requesting of maternity leave.

Under regulation 20 of the Maternity and Parental Leave Regulations 1999 (MPLR 99), it is automatically unfair to dismiss an employee as redundant where:

• the circumstances giving rise to the redundancy apply equally to other employees doing similar jobs who have not been selected; and

• the main reason for selecting her was her pregnancy or maternity.

In SG Petch v English-Stewart [2012] UKEAT 0213/12/3110, the claimant’s employer made her redundant having “discovered” during maternity leave that it could “manage without her”, by sharing out her tasks among the existing workforce. The EAT ruled that where it becomes apparent to an employer, as a result of an employee’s absence on maternity leave, that there is a genuine redundancy situation because their role can be absorbed by the existing workforce, this will be a redundancy dismissal for a reason connected with pregnancy or maternity leave (regulation 20(2)(a) of the MPLR 99). It will be automatically unfair if there are others doing a similar job to the employee who is away on maternity leave and who have not been selected for redundancy.

It is sex discrimination to use selection methods that place those who have taken (or are on) parental leave in a less favourable position than those who have not (Reizniece v Zemkopibas Ministrija [2013] C-7/12).

It is sex discrimination to select a woman for redundancy for a reason connected with pregnancy or maternity (see Chapter 6, page 157).

Treating a woman who is pregnant or on maternity leave more favourably can sometimes result in less favourable treatment of her male colleagues, also at risk of redundancy. The law deals with this by saying that when deciding whether a man has suffered sex discrimination, no account can be taken of the special treatment of women who are pregnant or on maternity leave (section 13(6)(b) Equality Act 2010). The policy justification for this difference in treatment is the health, safety and welfare of the mother and her child. However, a new case, Eversheds Legal Services Limited v de Belin [2011] UKEAT/0352, has placed limits on this protection, by ruling that any protection given to pregnant women and those on maternity leave must be no more than is proportionate and necessary, taking into account the interests of other employees, male and female, who would otherwise be disadvantaged.

In the de Belin case, a man and a woman were both at risk of redundancy. Selection criteria were devised. These included an assessment of productivity measured over a period during which the woman was on maternity leave. The employer dealt with this by awarding her a notional performance score of 100% for that period, whereas the man was scored based on his actual performance. As a result, her male colleague was selected for redundancy instead of his female co-worker.

The EAT ruled that the employer had engaged in unlawful sex discrimination against the male colleague. The employer was at fault, said the EAT, because there were alternative more reasonable and proportionate scoring methods available which would have eliminated the disadvantage the woman suffered through being on maternity leave, without unreasonably harming the interests of the man. For example, both employees could have been awarded a notional score, or the employer could have chosen to look at performance over the period immediately preceding the maternity leave. Both of these options had been suggested by the male employee during consultation. Failure to consider them led directly to the selection of the man for redundancy and amounted to direct sex discrimination.

There are special rules in place to protect men and women on maternity, adoption and additional paternity leave who are made redundant when on leave, in relation to the obligation to offer alternative employment. These rules have not been affected by the de Belin case. They are explained on page 344.