We are undertaking a redundancy exercise in relation to which one of the selection pools consists of two employees (one male and one female). The selection process is to be by way of a number of selection criteria. The female employee is currently on maternity leave making it difficult to assess her current performance against some of the criteria. Can I just award her the maximum score in relation to those criterion?

This is a difficult question in what is a tricky area of law. In certain circumstances, pregnant women and women on maternity leave are entitled to be treated more favourably. For example, women who are selected for redundancy whilst on maternity leave are entitled to preferential treatment in relation to any suitable alternative vacancies that may be available.

However, the law affords pregnant women and women on maternity leave “special protection” in order to compensate for any disadvantage that they may suffer as a result of being on maternity leave and a man can not complain that he has been treated less favourably as a result.

While this may appear to confirm that an employer may award the employee on maternity leave a maximum score in relation to some of the redundancy criteria, a recent Employment Appeals Tribunal (EAT) decision has suggested that the answer is not as straightforward as this and that employers may be exposed to risk of claims of sex discrimination from male employees in the event that such notional scores are awarded.

The EAT held that while women on maternity leave are entitled to “special treatment”, this treatment should not go further than is necessary for that purpose. If the treatment is disproportionate, it is likely to discriminate against the male employee.

This does leave employers in a tricky position. On one hand - employers risk discriminating against women on maternity leave if they are not given the protection to which they are entitled, while on the other hand, if that protection goes too far, employers are at risk of claims from male employees.

The EAT did not give any guidance on what may be proportionate, and each individual situation will have to be assessed on its own facts. In order to minimise the risk of  discrimination claims, employers should look at the selection criteria and assess where any disadvantage to employees on maternity leave may arise. Particular care should be taken in relation to any criterion which are designed to assess performance in a period in which the female employee has been absent. As a practical step, employers should consider whether those criterion can be removed, given a lower weighting or whether there is another way to undertake the selection exercise.

One thing that is certain, is that there is likely to be an increase in litigation as employers try to navigate their way through this difficult area.