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Pregnancy, Positive Discrimination & Polkey

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[Thanks to Lionel Stride of Temple Garden Chambers for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Eversheds v De Belin, which is authority for the proposition that the obligation to protect employees who are pregnant or on maternity leave under S 2(2) of the SDA 1975 is limited to treatment that is "reasonably necessary [meaning proportionate] to compensate them for the disadvantages occasioned by their condition". Thus, a colleague who is disadvantaged by the provision of a disproportionate pregnancy or maternity benefit - for example when other less discriminatory alternatives are available - would be entitled to claim sex discrimination.

Accordingly, the EAT upheld the Tribunal's finding of sex discrimination and unfair dismissal where the claimant had been scored lower in a redundancy exercise than a colleague on maternity leave solely because she had been given a maximum notional score for "lock up", measuring the length of time between undertaking work and receiving payment from the client. The maternity benefit was disproportionate because there were less discriminatory alternative measures that could be adopted, such as measuring performance at a time when both candidates were still at work.

There was some success for the employers, however: the EAT upheld their appeal against the Tribunal's decision not to make any Polkey reduction on the basis that they had disregarded cogent evidence that the claimant would have been made redundant in any event some 9 months later. The claim was therefore remitted to a different Tribunal to consider whether the claim for loss of earnings should be capped or discounted on this basis.