Mothers are, as we all know, special.  And the law acknowledges them as such, in that it allows employers to afford ‘special treatment’ to pregnant women and mothers, without that amounting to unlawful discrimination against men.  But the EAT has recently curbed the extent to which that ‘special treatment’ may be allowed; and this may have wider implications beyond the facts of this particular case.  Sarah Lamont looks at the detail.

The background

Section 2(2) of the Sex Discrimination Act 1975 (SDA), provided that in assessing whether actions are sex discriminatory against a man, "no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth". Similar provisions are replicated in the Equality Act 2010, which repealed and replaced the SDA 1975 on 1 October 2010.

This case also looked at a ‘Polkey deduction’ compensation point.  This principle is named after a case called Polkey v AE Dayton Services (1987) and is a reduction in the compensatory award made to an employee, to reflect the likelihood that there would ultimately have been a fair dismissal in any event.  A Polkey deduction may be expressed as a percentage reduction (up to 100% in some cases) or as a cap on future loss.

The facts

In Eversheds Legal Services Limited v De Belin , Mr de Belin, an associate solicitor who worked for law firm, Eversheds, was made redundant in January 2009.  Ms Reinholz, the other solicitor in his pool of comparison, was automatically given the maximum score under a financial selection criteria called ‘lock up’ – this was calculated on the amount of time it took for a solicitor to be paid by clients for work done.  Eversheds did this because Ms Reinholz was on maternity leave at the time of the redundancy exercise and there were, therefore, no financial figures available for her for the relevant period.  In contrast, Mr de Belin was scored on his actual ‘lock up’ and received 0.5 points, the lowest possible score.

Mr de Belin raised a grievance. He argued that there were alternative options available to Eversheds which would allow them to assess lock-up more fairly, which did not involve automatically giving Ms Reinholz a maximum score.  He argued that if Ms Reinholz's lock-up had been measured with reference to the period immediately before she went on maternity leave, she would also have scored 0.5, and would have been awarded an overall score lower than his.  However, Mr de Belin’s grievance was rejected, and he was selected for redundancy in January 2009.

Mr de Belin brought an employment tribunal claim against Eversheds for unfair dismissal and sex discrimination, on the basis of Eversheds’ artificial inflation of Ms Reinholz’s score.  Eversheds defended his claim on the basis that it had been obliged to afford Ms Reinholz ‘special treatment’ under section 2(2) of the Sex Discrimination Act 1975 because of her absence on maternity leave. Mr de Belin’s claim succeeded at employment tribunal. 

At a subsequent remedies hearing, an Employment Tribunal declined to apply a ‘Polkey reduction’ to Mr de Belin’s claim, on the basis that there was insufficient evidence to suggest that Mr de Belin would have been made redundant in a further redundancy exercise which took place four months after his dismissal. 

The decision

The Employment Appeal Tribunal (EAT) rejected Eversheds’ appeal and upheld Mr de Belin’s claim for unlawful sex discrimination. 

The EAT said that the principle of ‘proportionality’, derived from EU law, had to be applied to section 2(2).   Accordingly, the EAT held it is necessary to read the words in section 2(2) “special treatment afforded to women in connection with pregnancy or childbirth” as referring only to treatment which is a ‘proportionate means of achieving a legitimate aim’; the ‘legitimate aim’ in question being compensation for the disadvantages occasioned by pregnancy or maternity leave.

In the EAT’s view, automatically awarding Ms Reinholz the maximum score for lock-up went beyond what was reasonably necessary and resulted in patent unfairness to Mr de Belin.  The EAT said that the most satisfactory alternative would have been measure the lock-up performance of both candidates for redundancy as at the last date that Ms Reinholz was at work.

The EAT did, however, say that the Employment Tribunal was wrong to refuse to make a Polkey deduction to Mr de Belin’s award of compensation.  Although the EAT acknowledged that there was some uncertainty about the likelihood of whether Mr de Belin would have been made redundant in the subsequent redundancy programme, it said that this should not have prevented the tribunal from considering a deduction. 

What does this mean for me?

This case puts an important gloss on how preferential treatment in relation to pregnancy and childbirth should be applied.  It is not a requirement to ‘gold plate’ treatment whatever the circumstances; the treatment should go no further than is reasonably necessary, without putting colleagues at a serious disadvantage or prejudice. 

That said, the EAT was mindful of the important protection provided by section 2(2) of the SDA), and commented that petty claims by disgruntled male colleagues who resent the protection given to pregnant women and mothers can expect short shrift.

Therefore, although this decision confirms that the rights of pregnant and maternity leave employees should not be placed above all others, it does still maintain the special protection afforded to such employees.

The general principles set down in this case may also have a wider application outside the context of redudancy, particularly for employers currently considering whether or not to match enhanced additional maternity and paternity benefits. Whilst the government has indicated that failing to match enhanced benefits for male and female staff will not be discriminatory, this case may make it more difficult for employers to argue that a failure to match benefits for employees on additional paternity leave falls within the protection in the Equality Act 2010 (which replicates the provisions which were in section 2(2) of the SDA).  There has, however, been no caselaw on this point, and it remains open to argument.  For more information on additional paternity leave and whether pay should be enhanced to match enhanced additional maternity leave pay, please see our March 2011 article .

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