Employment Law Advocates

There was recently a remarkable case in which a City law firm, Eversheds, was found to have discriminated against a male associate solicitor who had been selected for redundancy ahead of a colleague who was on maternity leave. One of the criteria was performance and she had been given the highest possible score on the grounds that she had been away from work for the whole of the relevant period. The margin was narrow and so I can understand why the dismissal was found to be unfair but I also have considerable sympathy for Eversheds. Had they dismissed the pregnant employee by a similar margin, many tribunals would naturally have been suspicious and the risk of a sex discrimination finding would have been great.

Details are scanty but it appears that the main argument advanced was based on section 2(2) of the Sex Discrimination Act, which allows for more favourable treatment of women where there is special treatment in connection with pregnancy. However, it is doubtful that ‘special treatment’ would be interpreted widely enough to cover the circumstances of this case and I would not expect this point to succeed on appeal.

However, even before section 2(2) comes into play, it is necessary to establish that there has been less favourable treatment on the grounds of sex and here I think that Eversheds have a number of strong arguments. The first point to be made is that the woman in this case was not treated more favourably because she was pregnant. Had she been at work at the time, she would presumably have been scored for performance in the usual way, whether pregnant or not. She was treated more favourably because she was on maternity leave, which leads to subtly different results than if her pregnancy had been the reason.

If the pregnancy itself had been the reason then, as a matter of European law, there would have been discrimination on the grounds of sex, as there is no way of comparing a male employee with a pregnant one. However, in my submission, where maternity leave is the reason, a comparison can be made with a man, namely one who is on paternity leave. If, as seems likely, Eversheds would have given a maximum score to an employee absent on paternity leave then there was no discrimination on the grounds of sex.

Of course, if a woman is treated less favourably on the grounds of her maternity leave, she can rely upon section 3A of the Sex Discrimination Act but there is nothing to suggest that she cannot be treated more favourably for that reason, at least where a meaningful male comparator can be established. Nor does it make any difference if, as alleged, Eversheds were engaging in risk management in treating the woman more favourably because they would surely have engaged in exactly the same risk management process in a paternity leave situation, given that dismissals related to paternity leave will be automatically unfair.