It is commonly known that if an employer considering making redundancies treats a woman who is pregnant or who is or has recently been on maternity leave less favourably than non-pregnant colleagues, a claim of unlawful discrimination may arise. This may include a woman not being consulted because she is on maternity leave, or being scored lower because she has missed appraisals or targets while on maternity leave
However in Eversheds Legal Services Ltd v De Belin the employer bent over backwards the other way. Mr De Belin was scored lower than a female colleague on maternity leave, who was given a maximum notional score on one selection criterion. Mr De Belin scored lower overall and was made redundant. He brought a sex discrimination claim and the Tribunal awarded him a whopping £123,053 in compensation (much more than the maximum award had he merely claimed unfair dismissal). The Employment Appeal Tribunal upheld the decision that favouring a woman on maternity leave in a redundancy scoring was discrimination against a man in the same selection pool.
The employer's scoring was not proportionate and went beyond what was necessary and as a result unreasonably disadvantaged Mr De Belin. There were fairer ways of dealing with the woman’s absence such as looking at the performance of both candidates when they were last at work; in other words excluding the time during which the woman was on maternity leave, and just looking at her performance when she was around. However that too is not without its own risks. If that same woman had already been on maternity leave, she could potentially have argued that her own performance had been affected as a result, and that, if she was scored lower than her male colleague, it would be indirect discrimination against her. Employers do indeed have a difficult balance to strike when pregnant women are in the at risk pool of redundancies.
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