UK: Redundancy scores - EAT confirms that inflating score of woman on maternity leave may be unlawful

When scoring redundancy candidates against selection criteria based on performance, it may be unlawful to use a period when the woman is on leave and simply give her the maximum score. Employers must consider whether alternative approaches could ensure that the woman is not disadvantaged without injustice to male employees.

Although it is unlawful to treat a woman more favourably than a man, "special treatment" in connection with pregnancy or childbirth is expressly excluded from the prohibition. The EAT has ruled that "special treatment" is only lawful if it goes no further than is reasonably necessary to compensate for the disadvantages due to pregnancy or being on maternity leave.

An employer chose to use a criterion based on performance over a reference period. One of two employees in the selection pool was on maternity leave during this period. The employer automatically awarded her the maximum score for that criterion, while giving the other employee his actual score. Solely because of this, the male employee scored lowest and was selected for redundancy.

The EAT ruled that the employer's special treatment had gone further than reasonably necessary. It could instead have measured performance over a period up to the women's last day of work (using the same period for the other employee as well). There was no reason in this case to suppose that using an earlier date was any less reliable an indicator of the relevant skill level. Another alternative would have been to omit that criterion altogether.

Because the other employee was male, he succeeded in claiming unlawful sex discrimination.

Unless appealed further, this ruling may have significant implications for employers not only in relation to redundancy criteria. Employers will have to ensure they do not treat employees who are pregnant or on maternity leave any more favourably than is "reasonably necessary" in relation to issues such as work allocation or hours during pregnancy, or pay during leave periods. (De Belin v Eversheds Legal Services, EAT)