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Redundancy selection: Is it a boy or a girl?

12 April 2011

Under the Equality Act 2010 (schedule 7 para 2 ) women on maternity leave can be given ‘special treatment … in connection with pregnancy or childbirth’. This would not amount to sex discrimination against men.

So in a redundancy selection process which involved assessing performance at a specified date, you might think giving a woman on maternity leave the maximum score while scoring the man on his actual performance would not be sex discrimination. Is that not just giving the woman on maternity leave ‘special treatment’, which the law allows?

Not according to the EAT. The special treatment must be proportionate. In this case, the woman scored higher than the man because she was on maternity leave. There were fairer ways of avoiding disadvantage to women on maternity leave, such as assessing performance as at the last date they both worked.

The moral may be that employers who imagine that risk of pregnancy/maternity discrimination claims gets less the better they treat those on maternity leave are just leaping from one frying pan into another!

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