UK: How Far Should Maternity Protection Stretch?

Last Updated: 12 May 2011
Article by Michael Bronstein and James Davies

This article was first published in People Management on 18 April 2011.

Eversheds Legal Services Ltd v De Belin

A recent EAT case demonstrates that employers can go too far when trying to compensate for disadvantage suffered by women on maternity leave during a redundancy selection process.

One of the many myths about employment law is that an employee on maternity leave cannot be made redundant. This misunderstanding might be partially due to the fact that there are circumstances in a redundancy situation where an employee on maternity leave has to be treated more favourably than others. These rare examples of lawful "positive" discrimination can occur in two ways.

Alternative vacancies

Employees on maternity leave must be offered any suitable alternative vacancy to start immediately after her existing contract ends (maternity and parental leave regulations 1999). The new contract must provide her with work that is suitable and appropriate for her in the circumstances, and of a similar status to her old job, and all her other employment terms and conditions, including her place of work, must be no less favourable than if she had continued in her old role.

This right takes precedence over other employees facing redundancy who would otherwise be entitled to be considered for the vacancy. If the employer does not comply with this requirement, the employee on maternity leave could claim for automatic unfair dismissal and pregnancy and maternity discrimination.

Special treatment

The Equality Act 2010 provides that "special treatment afforded to women in connection with pregnancy or childbirth" is not discriminatory (S13(6)(b),previously S 2(2) of the Sex Discrimination Act 1975). How far such special treatment should go was the central issue in a recent Employment Appeal Tribunal case.

The law firm Eversheds decided that one of two associate solicitors would have to be made redundant. The male claimant, de Belin, and the other associate, a woman on maternity leave, were both scored against performance criteria. One criterion measured was "lock up", the length of time between work being completed and being paid for by the client. The female associate's "lock up" time could not be measured in the period chosen because she was on maternity leave, so she was given the maximum score for this criterion in accordance with the firm's general policy for employees on maternity leave "at risk" of redundancy. This gave her a higher overall score than de Belin by just half a point, so he was selected for redundancy.

Proportionate treatment

The employer argued that the law positively required it to give the female associate the maximum score, to eliminate any disadvantage to her caused by her being on maternity leave. The EAT rejected this argument. It found that it was not necessary to give the female associate a maximum score on 'lock up' - there were more proportionate means available of ensuring that she did not lose out in the redundancy scoring exercise through being on maternity leave. For example, she and de Belin could have been scored for work up to the period immediately before her maternity leave.


As this case shows, it is essential to understand the interplay between redundancy and any impact on an employee who is absent on maternity leave. If an employee is selected for redundancy, where the only (or principal) reason for her selection and ultimate dismissal is related to pregnancy, childbirth or maternity leave, the dismissal will be automatically unfair under the Employment Rights Act 1996 and will be discriminatory because of pregnancy and maternity. An employee who is made redundant while on maternity leave will also potentially have a pregnancy and maternity discrimination claim under the Equality Act 2010 if her giving birth, or being on maternity leave, has been a factor in her selection, or negatively impacted on any of the selection criteria, or has prevented her being adequately consulted.

Additional paternity leave

The right to additional paternity leave is now available to parents of babies due on or after 3 April 2011, and to adoptive parents notified of their match for adoption on or after that date. It is clear that an employee on paternityl eave during a redundancy exercise is entitled to be offered any suitable vacancy in the same way as a woman on maternity leave. The extent to which an employee on paternity leave is entitled to any additional protection is less clear and, no doubt, will give rise to some problems that tribunals may have to resolve.

Case ref UKEAT/0352/10

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


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