Eversheds Legal Services Ltd v de Belin EAT/0352/10
sex discrimination | pregnancy and maternity leave |
The Employment Appeal Tribunal (EAT) has held that “special
treatment” afforded to a woman in connection with pregnancy or childbirth under
the Sex Discrimination Act 1975 must constitute a proportionate means of
achieving the legitimate aim of compensating her for the disadvantages
occasioned by pregnancy or maternity leave.
Implications for employers
- Although this case was decided under the now repealed Sex
Discrimination Act 1975, the Equality Act 2010 contains equivalent
provisions, and so the decision will continue to be good law.
- The decision may have implications for employers that do not provide
the same benefits for employees taking additional paternity leave as
they do for women on maternity leave.
- For example, a male employee taking additional paternity leave might
claim sex discrimination if he is not provided with enhanced paternity
pay, where female employees are given enhanced maternity pay.
In September 2008, Eversheds decided to make one property lawyer in its
investor team redundant, and placed Mr de Belin and his colleague Ms Reinholz in
a redundancy selection pool. Prior to the two employees being placed at
risk, Eversheds had scored them against selection criterion, one of which was
“lock-up”, which is a measurement of the amount of time between a lawyer
carrying out a piece of work and receiving payment for that work from the
client. Eversheds had determined that the date at which the two employees
should be scored for lock-up was 31 July 2008, and Mr de Belin was accordingly
scored half a point.
However, on 31 July Ms Reinholz was on maternity leave, and Eversheds
determined that, given that no actual score could be given at that date, she
should be awarded a full notional score for lock-up of two points. This
decision proved crucial, as ultimately Mr de Belin scored half a point less,
overall, than Ms Reinholz, and was dismissed for redundancy. He brought a
claim for sex discrimination and unfair dismissal.
The tribunal decision (see In the
employment tribunals: May 2010) turned on its interpretation s.2(2) of the
Sex Discrimination Act 1975 (SDA) (now replaced by s.13(6)(b) of the Equality
Act 2010), which states that an employer does not discriminate against a man
where it affords a woman “special treatment” in connection with childbirth or
pregnancy. The tribunal held that “special treatment” does not mean all
treatment afforded to woman in connection with pregnancy or childbirth, and that
the provision was not intended to protect a woman on maternity leave in a
redundancy scoring exercise where she has received an unfairly inflated
score. The tribunal upheld Mr de Belin’s claims, and awarded him over
£123,000 in compensation. Eversheds took the case to the EAT.
As with the tribunal decision, the appeal turned on the interpretation of
s.2(2) of the SDA, with Eversheds arguing that its treatment of Ms Reinholz was
a clear instance of “special treatment” under that provision, and that it was
positively required as a matter of law to give her the score that it
The EAT found that the words “special treatment afforded to women in
connection with pregnancy or childbirth” in s.2(2) should be read as
referring to treatment afforded to a woman only so far as it constitutes a
proportionate means of achieving the legitimate aim of compensating her for the
disadvantages occasioned by her pregnancy or maternity leave. To the extent
that a benefit extended to such a woman is disproportionate, there is no reason
why a colleague who is correspondingly disadvantaged should not be entitled to
claim sex discrimination.
Applying this principle, the EAT held that the means adopted by Eversheds to
resolve the problem caused by Ms Reinholz’s absence at the measurement date that
would otherwise have applied were not proportionate, going beyond what was
reasonably necessary. There were alternative ways that Eversheds could have
removed the maternity-related disadvantage to Ms Reinholz without disadvantaging
Mr de Belin, the most satisfactory of which was to measure the lock-up
performance of both employees at the last date that Ms Reinholz was at
work. There was “no magic” in the date at which the measure was taken, and
Ms Reinholz would have lost no legitimate advantage in having her performance
measured for the last period during which she was at work.
The EAT dismissed Eversheds’ appeals, and upheld the tribunal’s findings of
sex discrimination and unfair dismissal. The EAT did, however, uphold an
appeal against the amount of Mr de Belin’s compensation, on the basis that the
tribunal had wrongly refused to consider evidence that, even if he had not been
dismissed, he would have been at risk of dismissal in a further redundancy
exercise in less than one year’s time.
Letter offering a suitable alternative
vacancy to an employee who is made redundant while on maternity leave Use
this model letter to send to an employee on maternity leave whose job has been
identified as redundant, as soon as a suitable alternative vacancy is
- Deal with the issues faced by Eversheds in this case the right way with
the following line manager briefing and "how to" guides:
transcript of Eversheds Legal Services Ltd v de Belin (on the Bailii