Special Treatment of Women in Connection with Pregnancy or Childbirth – Get the Balance Right

Posted: 5th May 2011

The Employment Appeal Tribunal (EAT) has ruled that it is necessary to construe the wording of the Sex Discrimination Act 1975 – and the Equality Act 2010 which supersedes it – in a manner which incorporates the legal principle of proportionality. The obligation to afford special treatment to a pregnant woman or a woman who is on maternity leave should not therefore extend to favouring her beyond what is necessary to compensate her for any disadvantages occasioned by her condition. The treatment should constitute a proportionate means of achieving this aim (Eversheds Legal Services Ltd. v de Belin).

John de Belin was made redundant following a redundancy exercise involving himself and another employee, a Ms Reinholz. Ms Reinholz was absent on maternity leave on the date selected for measuring one of the criteria used. This was ‘lock up’ – a measurement of the time between undertaking a piece of work and the receipt of payment from the client. Eversheds therefore accorded her the maximum score, in accordance with what was said to be its general policy applying to candidates for redundancy who were on maternity leave or away on sabbatical. The fact that Ms Reinholz was given the maximum lock up score tipped the balance in her favour and Mr de Belin was selected for redundancy.
The EAT held that the means adopted by Eversheds went beyond what was reasonably necessary in the circumstances. There were other ways of removing the maternity-related disadvantage to Ms Reinholz without unfairly disadvantaging Mr de Belin. In the EAT’s view, the most satisfactory way would have been to measure the lock up performance of both candidates as at the last date on which Ms Reinholz was at work, as this basis would have reflected her actual performance.
This case raises several questions for employers, not only with regard to the selection criteria used in any redundancy process but also regarding any differences between maternity and paternity pay arrangements. We can advise you to ensure your policies and procedures get the balance right.