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There’s always a sense of putting on the kid gloves when addressing any employment-related issue with employees who are pregnant or on maternity leave! In most instances, that approach is absolutely the right one, as there is a high degree of protection relating to maternity and pregnancy in the workplace. It is often commented that the protection afforded to employees in this position is disproportionate, and can be seen to overly favour pregnant employees to the detriment of male employees.
The impact of reg. 10 of the Maternity and Paternity Leave Regulations 1993 is a case in point. This provision effectively gives a woman on maternity leave (so not one who is pregnant and still working) preferential rights to any suitable positions should she be placed at risk of redundancy. This is in preference to any other employees in the same potential redundancy position as her, irrespective of an objective assessment of their abilities or performance as employees. Blatantly discriminatory towards men!
As a result of legislative provisions of this nature, of which there are actually very few, there has built up an assumed knowledge that pregnant employees should have special protection during redundancy programmes. An example of this can be seen in the case of Mr De Belin which has been widely reported since the EAT passed judgement in early April 2011. Needless to say the fact that Mr De Belin brought his claim against a firm of solicitors probably did nothing other than encourage an unhealthy interest from the legal profession!
In summary, Mr De Belin found himself in a pool for assessment for redundancy with another employee who happened to be female and on maternity leave. One of the criteria for assessment was ‘lock-up’, a term familiar to the legal profession as representing the time between work being completed and being paid for by the client. The law firm scored Mr De Belin 0.5 (low) for his lock-up, assessing it over the 12-month period before the assessment. His female colleague however was automatically given a score of 2 (high) even though she had not been at work for the vast majority of that 12-month period. Mr De Belin argued that had the firm assessed her lock-up for the 12 month period before she went on leave, her score would have matched his, and he would not have been placed at risk of redundancy. The firm argued that as she was on maternity leave they had an obligation to provide her with a ‘high level of protection’ for pregnant women. The EAT upheld the tribunal’s original decision that Mr De Belin had been discriminated against on the grounds of his gender. As a man he could not be pregnant, and therefore could not be afforded the ‘high level of protection’ that his employer gave to female employees who were pregnant.
In commentary since the case was reported, the law firm used their own experience as an example of how difficult it is for employers to balance the need to avoid discriminating against pregnant staff with the risk of being sued for discrimination by other groups of employees. It is difficult to have much sympathy with their position, given their fairly unique position as an employer in having access to such specialist advice on the subject matter! This case, and so many other maternity-related issues, is all about proportionality and common sense. It is also about ‘fairness’, not in the unfair dismissal procedural sense, but in the common understanding of the word, in the sense of equity. In this case, as an example, there was clearly a mechanism for comparing the two employees’ lock-up by considering the period before maternity leave started which would have given a balanced and equitable comparison between the two employees. To ignore this opportunity in favour of automatically assuming that the balance must be tipped in favour of the employee on maternity leave, for no other reason than she has chosen to take time away from work to give birth (something many men might equally chose to do were it physically possible!), is clearly unfair.
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