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Pregnancy and maternity leave
As well as being automatically unfair, it is sex discrimination to select a woman for redundancy for a reason connected with pregnancy or maternity leave. Section 13(6) (b) of the Equality Act 2010 says that when deciding whether a man has been subjected to sex discrimination, “no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth”. In other words, it is not “less favourable treatment” of a man, for example in redundancy selection, to treat him worse than a woman who is pregnant or on maternity leave. The policy justification for this special treatment is the health, safety and welfare of mother and child.
However, this principle is subject to an important limitation, introduced by the EAT in Eversheds Legal Services Limited v de Belin [2011] UKEAT 0352. This case decided that any protection of pregnant women and those on maternity leave, for example, when selecting for redundancy, 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:
Mr de Belin was one of two solicitors working at a large law firm. One redundancy was needed. The chosen selection criteria included a score for “lock-up” - the amount of time between doing a piece of work and getting paid for it. His female counterpart was on maternity leave over the lock-up measurement period so Eversheds allocated her a notional maximum possible lock-up score of two points. Mr de Belin’s genuine “lock-up” score was 0.5 points, and his total score in the selection exercise was 27. Since the woman’s total score was 27.5, this meant that the employer’s decision to award her notional full marks for “lock-up” resulted in him being made redundant instead of her — described by the EAT as a “real injustice”. He brought a claim for direct sex discrimination.
The EAT accepted that the law entitles pregnant women and women on maternity leave to extra protection but concluded that this protection must not extend beyond whatever is “reasonably necessary and proportionate” to compensate women for the disadvantage they suffer from being pregnant or on maternity leave. Eversheds’ policy went beyond what was proportionate and necessary since other options had been available. The EAT upheld Mr de Belin’s claims for both sex discrimination and unfair dismissal.
Eversheds Legal Services Limited v de Belin [2011] UKEAT0352
Under regulation 10 of the Maternity and Parental Leave Regulations 1999, employees on maternity leave when their jobs are made redundant must be offered suitable alternative employment if this exists, regardless of the length of time they have been working. This rule, looked at in detail in Chapter 6, is unaffected by the change in the law brought about by the case of Eversheds Legal Services Limited v de Belin [2011] UKEAT0352.