The Employment Appeal Tribunal has rejected Eversheds’ appeal against a decision that found the firm’s redundancy programme discriminated on grounds of sex by giving too much protection to pregnant employees.
The judgment, which was handed down today, is a landmark decision for maternity rights that could leave employers “stuck between a rock and a hard place”, according to one lawyer.
The original decision, delivered by Leeds Employment Tribunal on 9 March 2010, related to a claim brought by John de Belin, a former associate in the real estate team at Eversheds’ Leeds office (3 May 2010).
De Belin lost his job during firmwide redundancies in February 2009. He claimed that during the firm’s consultation he had been treated less fairly than a female colleague, who was given full marks on certain performance criteria despite being on maternity leave during the consultation period.
The tribunal found in favour of de Belin and in a remedies hearing ordered Eversheds to pay him £123,300.
The EAT upheld the tribunal’s decision as regards liability, but admitted mistakes were made when considering damages – in particular that the tribunal failed to take into account the fact, even if de Belin was not laid off when he was, he could have been in the next round of redundancies. A further hearing will be held, at a different tribunal, to decide an appropriate remedy.
Dismissing Eversheds’ appeal, the EAT held that the lengths the firm went to in order to protect the pregnant associate, who was later laid off in a subsequent round of redundancies, went beyond what was reasonably necessary.
According to the tribunal the part of the relevant act – section 2(2) of the Sex Discrimination Act 1975 – which says “special treatment afforded to women in connection with pregnancy or childbirth” should be read in light of EU law principles and so any actions taken by employers to give effect to the provision must be proportionate.
“It’s a tricky decision because it changes the goal posts,” said Alan Chalmers, DLA Piper’s head of employment, pensions and benefits. “What the decision boils down to is that the Employment Appeal Tribunal confirmed that there was nothing to prevent a male employee bringing a sex discrimination claim when a woman on maternity leave is treated disproportionately more favorably and that when giving ’special treatment’ to women in connection with childbirth or pregnancy an employer must act ‘proportionately’.”
Although the new interpretation of the Sex Discrimination Act is widely agreed to be more in line with EU law, not everyone is convinced that the decision will promote fairness.
“Generally speaking pregnant women are vulnerable during a recession,” said Rosalind Bragg, director at Maternity Action. “In 2005 it was found that 30,000 pregnant women each year lost their jobs [7 per cent of all pregnant women] and all evidence points towards a dramatic increase in discrimination against pregnant women. It’s important that there’s strength in protection for women in the workplace.”
An Eversheds spokesperson said: “The firm stands by the decisions it took with respect to the treatment of women on maternity leave, which it believes is consistent with its obligations under EU and UK law.”
Eversheds partner Simon Rice-Birchall instructed John Cavanagh QC of 11 King’s Bench Walk, while Simon Popplewell of Gough Square Chambers, acting pro bono, appeared for de Belin.