Eversheds Legal Services v De Belin

Special treatment for a pregnant employee or an employee on maternity leave is lawful only so far as it is a proportionate means of compensating for disadvantages caused by pregnancy or maternity absence. Treatment which goes beyond what is reasonably necessary may unlawfully disadvantage a colleague and constitute sex discrimination.

In an unfair dismissal claim, an employer cannot rely on its own failure to identify a proportionate method of protecting an employee on maternity leave where the resulting dismissal is plainly unfair. In assessing compensation, tribunals must consider evidence of a possible later dismissal. The presence of speculation does not justify refusing to conduct a Polkey assessment.

A solicitor was selected for redundancy after being scored against performance criteria alongside a colleague absent on maternity leave. The employer gave the absent colleague a notional maximum score for the “lock up” criterion, while applying the claimant’s actual score. That difference determined the selection.

An Employment Tribunal found direct sex discrimination, unfair dismissal and awarded compensation for more than three years’ loss of earnings. The employer appealed against liability and remedy. The central issues were whether the scoring method was protected special treatment connected with pregnancy or maternity, whether the dismissal was unfair, and whether compensation should be reduced to reflect a later redundancy risk.

1. Liability for sex discrimination. The appeal on liability was dismissed. A man may rely on the more favourable treatment of a female colleague because of pregnancy or maternity leave. Such treatment may be lawful, but only where it is reasonably necessary and proportionate to prevent disadvantage caused by the maternity absence.
2. Statutory construction. Section 2(2) of the Sex Discrimination Act 1975 was construed consistently with article 2.7 of the Equal Treatment Directive. “Special treatment” covered only proportionate treatment directed to compensating for disadvantages caused by pregnancy or maternity leave. Section 5(3) did not produce a different result.
3. Application. Giving the absent employee the maximum score, unrelated to any assessment of her merit, was disproportionate. There were less prejudicial alternatives, including measuring both candidates by reference to the last date on which the absent employee had worked. The employer had therefore unlawfully discriminated against the claimant.
4. Unfair dismissal. The Tribunal should have considered unfair dismissal separately. Nevertheless, it was not reasonable for the employer to believe that maintaining the maximum score was its only lawful option, particularly once it became clear that the method decisively disadvantaged the claimant. The dismissal was unfair.
5. Remedy. The appeal on remedy was allowed. The Tribunal wrongly treated evidence of a possible later redundancy as too speculative to require consideration. Under the principles stated in King v Eaton, Thornett v Scope and Software 2000, prediction necessarily involves uncertainty, and speculation alone is not a reason to refuse a Polkey assessment. The issue of any cap or discount for the September 2009 redundancy exercise was remitted to a fresh Tribunal. An arithmetical error in calculating future loss was also to be corrected.

• Employment Tribunal: found sex discrimination and unfair dismissal, and awarded compensation of £123,053.03.
• Employment Appeal Tribunal: dismissed the liability appeal, allowed the remedy appeal, and remitted the compensation issue to a fresh Tribunal.