Law firm Eversheds needed to make one redundancy out of a pool of two potential candidates, one male, one female. One of their chosen selection criteria was “lock up”, meaning the amount of time between completing work and getting paid for it. To calculate a “lock up” score, Eversheds needed to fix a reference period. Because the female candidate was on maternity leave during the firm’s chosen reference period, the firm allocated her the maximum possible “lock up” score. This artificially inflated her total score, meaning that the male candidate, Mr de Belin, was made redundant instead of her.

During consultation, Mr de Belin suggested alternative solutions that avoided this unfairness, such as giving each party a notional score of 1, or using a different reference period, such as the period immediately before Ms Reinholz left for maternity leave. These suggestions were rejected. Mr de Belin brought a claim for direct sex discrimination.

Although sex discrimination legislation prohibits discrimination against both men and women, the law places pregnant women and those on maternity leave in a special position. Section 13(7) of the Equality Act 2010 says that when deciding whether “less favourable treatment” has taken place, “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 to treat him worse than a woman who is pregnant or on maternity leave. The policy justification for this special treatment is the health and welfare of mother and baby.

The EAT accepted that the law gives pregnant women and women on maternity leave a right to special treatment, more favourable than the treatment given to other men or women, but went on to decide 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.

By giving the female candidate the maximum score, Eversheds went beyond what was proportionate, especially as they could have chosen other options that would have achieved the aim of the legislation in a more proportionate way, such as those suggested during consultation. Mr de Belin’s claims for both sex discrimination and unfair dismissal succeeded.

Eversheds Legal Services Limited v de Belin [2011] UKEAT/0352