Positive Discrimination – the Perils!

Sometimes, employers may perhaps be forgiven for thinking that they are damned if they do and they are damned if they don’t. The recent case of Eversheds Legal Services Ltd. v. De Belin is a good illustration of just how easy it is to fall foul of discrimination law.

Eversheds were faced with having to make one of two employees redundant - namely B, a man, or R, a woman on maternity leave. Under the redundancy scoring system adopted, one of criteria was the time between work being done by a lawyer and payment being received for the work. Eversheds were faced with the issue as to how to apply the criterion to R when she was away from work on maternity leave. Mindful of its obligation not to discriminate against R on the grounds of her having taken maternity leave, it decided to award her the maximum of two points under this criterion. The final result of the scoring exercise was: B - 27 points; R - 27.5 points. B was made redundant.

B brought claims for unfair dismissal and sex discrimination. The Employment Tribunal upheld his claims and awarded him more than £123,000 in compensation. Eversheds’ appeal to the Employment Appeal Tribunal was dismissed. After examining both European and domestic case law, the EAT ruled that, owing to their special position, women who are pregnant or on maternity leave sometimes need to be treated more favourably than their colleagues. However, such women can only be treated more favourably so far as it is reasonably necessary to compensate them for the disadvantages occasioned by their condition. Here, the approach adopted by Eversheds had been disproportionate. They could have, for example, applied the relevant criterion to both B and R as at the date when R had started maternity leave.

The message of this case is that employers should be cautious about discriminating in favour of a woman on the grounds of her pregnancy or because she has exercised her right to maternity leave. Any favourable treatment must be proportionate. That said, one should probably not over-egg the pudding. In his judgment in the EAT. Mr Justice Underhill endeavours to provide some comfort to employers by making it clear that unmeritorious claims by men complaining about proper protection given to pregnant women and mothers will receive short shrift from tribunals.

If you would like to know more, please contact Tom Silverwood-Cope or Gareth Pobjoy.

Filed: 06/05/2011 15:16:43