How Far Should Maternity Protection Stretch?

Eversheds Legal Services Ltd v De Belin

A recent EAT case demonstrates that employers can go too far when trying to compensate for disadvantage suffered by women on maternity leave during a redundancy selection process.

One of the many myths about employment law is that an employee on maternity leave cannot be made redundant. This misunderstanding might be partially due to the fact that there are circumstances in a redundancy situation where an employee on maternity leave has to be treated more favourably than others. These rare examples of lawful "positive" discrimination can occur in two ways.

Alternative vacancies

Employees on maternity leave must be offered any suitable alternative vacancy to start immediately after her existing contract ends (maternity and parental leave regulations 1999). The new contract must provide her with work that is suitable and appropriate for her in the circumstances, and of a similar status to her old job, and all her other employment terms and conditions, including her place of work, must be no less favourable than if she had continued in her old role.

This right takes precedence over other employees facing redundancy who would otherwise be entitled to be considered for the vacancy. If the employer does not comply with this requirement, the employee on maternity leave could claim for automatic unfair dismissal and pregnancy and maternity discrimination.

Special treatment

The Equality Act 2010 provides that "special treatment afforded to women in connection with pregnancy or childbirth" is not discriminatory (S13(6)(b),previously S 2(2) of the Sex Discrimination Act 1975). How far such special treatment should go was the central issue in a recent Employment Appeal Tribunal case.

The law firm Eversheds decided that one of two associate solicitors would have to be made redundant. The male claimant, de Belin, and the other associate, a woman on maternity leave, were both scored against performance criteria. One criterion measured was "lock up", the length of time between work being completed and being paid for by the client. The female associate's "lock up" time could not be measured in the period chosen because she was on maternity leave, so she was given the maximum score for this criterion in accordance with the firm's general policy for employees on maternity leave "at risk" of redundancy. This gave her a higher overall score than de Belin by just half a point, so he was selected for redundancy.

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