The respondent had to make one out of two employees redundant. The claimant's colleague was on maternity leave at the time. One of the scoring criteria was the length of time each employee took to recover money from their clients, but since the claimant's colleague had not been at work during the relevant period, she was awarded the maximum possible score in this area. Her total score ended up being higher than the claimant's, by a very small margin, and he was made redundant. If she had not been given the maximum score the two scores would have either been level or the female colleague would have been selected for redundancy instead. The claimant claimed that he had been discriminated against because he had been treated less favourably than his female colleague. The Tribunal held that the different scoring method did constitute unlawful sex discrimination and the claimant had been unfairly dismissed. In awarding the claimant 3 years loss of earnings, the Tribunal added that there was insufficient evidence to enable it to carry out a Polkey exercise.

The EAT upheld the ET's decision on liability. They dismissed the respondent's argument that they were positively obliged to accord the female colleague the maximum score. The respondent argued that, since the possibility could not be excluded that if she had remained at work she would have performed sufficiently well to score the maximum, any lesser score would mean she might have lost out by reason of her absence on maternity leave, which would be in breach of the SDA 1975. The EAT said that more favourable treatment of the female comparator in order to compensate her for a disadvantage consequent on her absence on maternity leave would not constitute unlawful sex discrimination, if but only if the treatment was no more favourable than was reasonably necessary for that purpose. In this case, it was not reasonably necessary to accord the female comparator a notional score because there were more proportionate means available to ensure she did not lose out in the redundancy exercise because of her maternity absence. On the remedy issue, the Tribunal had wrongly refused to consider evidence that if the claimant had not been dismissed he would have been at risk of dismissal in a further redundancy exercise in less than a year's time.

________________

Appeal No. UKEAT/0352/10/JOJ

UKEAT/0444/10/JOJ

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1 and 2 December 2010

Judgment handed down on 6 April 2011

Before

THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT)

MR. B. BEYNON

MR. T. HAYWOOD

EVERSHEDS LEGAL SERVICES LTD (APPELLANT)

MR. J. DE BELIN (RESPONDENT)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant
MR. JOHN CAVANAGH (One of Her Majesty's Counsel)
Instructed by:
Eversheds LLP
Bridgewater Place
Water Lane
Leeds
LS11 5DR

For the Respondent
MR. SIMON POPPLEWELL (of Counsel)
Appearing pro bono

**SUMMARY**

SEX DISCRIMINATION – Direct

SEX DISCRIMINATION – Pregnancy and discrimination

SEX DISCRIMINATION – Other losses

UNFAIR DISMISSAL – Reasonableness of dismissal

UNFAIR DISMISSAL – Polkey deduction

Male claimant and female comparator absent on maternity leave in redundancy selection pool – On one criterion ("lock up") Claimant given low (actual) score but comparator given (notional) maximum score since because of her absence at the measurement date no actual score was available – Claimant selected, but if comparator had not been given the maximum score for lock up the scores would either have been level or she would have been selected – Tribunal holds that the different scoring method constituted unlawful sex discrimination and the Claimant had been unfairly dismissed – Claimant awarded compensation for over three years' loss of earnings – Appeals on liability and remedy.

LIABILITY

Held, dismissing appeal, that:

(1) As regards sex discrimination, more favourable treatment of the comparator in order to compensate her for a disadvantage consequent on her absence on maternity leave would not constitute unlawful sex discrimination, if but only if the treatment was no more favourable than was reasonably necessary for that purpose – article 2.7 of the Equal Treatment Directive and section 2 (2) of the Sex Discrimination Act 1975 considered; but

(2) It was not reasonably necessary to accord the comparator a notional score on the lock up criterion because there were more proportionate means available of ensuring that she did not lose out in the redundancy exercise because of her maternity absence.

(3) As regards unfair dismissal, it was not reasonable in the circumstances for the employer to rely on its own failure to identify more proportionate means of protecting the comparator's position.

REMEDY

(4) The Tribunal had wrongly refused to consider evidence that if the Claimant had not been dismissed he would have been at risk of dismissal in a further redundancy exercise in less than a year's time – King v Eaton, Thornett v Scope and Software 2000 considered – Tribunals not to decline to undertake Polkey exercise merely because it involves "speculation"

**THE HONOURABLE MR JUSTICE** **UNDERHILL****INTRODUCTION**

1. The Claimant, the Respondent before us, is a solicitor. Until his dismissal for redundancy with effect from 21 January 2009 he had been employed for over fourteen years by the Appellants, to whom we will refer as Eversheds. By a Judgment and Reasons sent to the parties on 24 March 2010 an Employment Tribunal sitting at Leeds chaired by Employment Judge Shulman held that he had been unfairly dismissed and that Eversheds had discriminated against him on the grounds of his sex. By a subsequent Judgment dated 14 April 2010 he was awarded compensation totalling £123,053.03: written Reasons for that decision were sent to the parties on 28 July.

1. Eversheds appeal against both decisions. They have been represented before us by Mr. John Cavanagh QC, and the Claimant by Mr. Simon Popplewell, neither of whom appeared below. We are grateful to them both for excellent written and oral submissions.

1. We take the liability and remedy appeals in turn.

**LIABILITY**

1. The facts are not contentious and a bare outline will suffice.

1. The Claimant was one of two associates working in Eversheds' Leeds office as part of their Real Estate Investor Team. The other associate was a Ms. Reinholz.

1. In September 2008 it was decided that one of the two associates in the team would have to be made redundant. The Claimant and Ms. Reinholz were scored against various performance criteria. One of those criteria was "lock up", which measures the length of time between the undertaking of a piece of work and the receipt of payment from the client. If the average period was over 161 days the employee scored 0.5; if it was between 150 and 161 days, 1; if between 141 and 150, 1.5; if under 141, 2. The measurement was performed as at 31 July 2008. The Claimant's figure was 238, giving him a score of 0.5.

1. Ms. Reinholz was absent on maternity leave at the measurement date: she had in fact been away since 10 February. That meant that lock up could not be measured for her as at that date, since she had no client files. In accordance with what was said to be a general policy applying to candidates for redundancy who were absent on maternity leave or sabbatical, Eversheds accorded her the maximum score for this criterion, which was 2.

1. The Claimant's overall score at the conclusion of the exercise was 27. Ms. Reinholz's was 27.5. That meant that it was the Claimant who was selected for redundancy; but the closeness of the result also means that if Ms. Reinholz had not been given the maximum score on lock up there would either have been a tie or she would have scored less than him and herself been the one selected.

1. In the course of the redundancy consultation, and a subsequent formal grievance, the Claimant protested that what had happened was unfair and constituted sex discrimination. He suggested alternative approaches to scoring lock up performance, namely: (a) giving both himself and Ms. Reinholz a notional score of 1; (b) averaging her performance over a twelve-month period; or (c) scoring her at the last convenient date before she started her maternity leave, which would be 31 December 2007. He pointed out that if lock up had been measured at the latter date, her figure was 260 and she too would have scored only 0.5. Eversheds accepted that the result might appear unfair, but they said that their approach was required by law in order to see that Ms. Reinholz did not lose out by her maternity absence and thus to avoid the risk of a sex discrimination claim from her. They declined to change their position, and the Claimant's dismissal proceeded accordingly.

1. It will be clear from that account that the Claimant has suffered a real injustice. By giving Ms. Reinholz a notional maximum score, while he was given his actual score, Eversheds gave her an advantage over him which was not based on an assessment of their respective merits; and that advantage is very likely to have made the difference between him keeping and losing his job. Mr. Cavanagh pointed out that we only know that as a matter of hindsight, and the chance that the special treatment of Ms. Reinholz would in fact affect the outcome of the selection exercise was quite small. But the fact is that it happened, and the possibility that the difference in treatment would be decisive was certainly foreseeable. Mr. Cavanagh also reminded us that hard cases make bad law. As to that, we accept that the issues in the appeal must be decided by reference to legal principle; but in seeking to identify the relevant principles it is not only legitimate but right that we should look for an approach which is most likely to avoid injustice in this and similar cases.

THE SEX DISCRIMINATION CLAIMThe Issues

1. The claim is of direct discrimination – that is, discrimination within the meaning of section 1 (2) (a) of the Sex Discrimination Act 1975, which provides that:

"… a person discriminates against a woman if –

(a) on the ground of her sex, he treats her less favourably then he treats or would treat a man …"

By section 2 (1) that definition is to be read as applying equally to the treatment of men. However, that is subject to sub-section (2), which reads:

"in the application of sub-section (1) no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth."

Section 5 (3) reads:

"each of the following comparisons, that is –

(a) a comparison of the cases of persons of different sex under section 1 (1) or (2),

(b) …

(c) …

(d) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

1. Against that background the Claimant's claim is formulated as follows:

(a) Applying an actual measure of lock up performance to him, while giving Ms. Reinholz a notional maximum score, constituted less favourable treatment of him than of her.

(b) Since that more favourable treatment was on the grounds of her maternity leave, which is a gender-specific criterion, it must be treated as being on the grounds of her sex.

(c) Since Ms. Reinholz was being treated more favourably on the grounds of her sex, the Claimant was, necessarily, being treated less favourably than her on the grounds of his sex.

1. We should say at the outset that we see no conceptual objection to a man bringing a sex discrimination claim by reference to the more favourable treatment of a colleague on account of her being pregnant or on maternity leave. Those are, as the Claimant says, gender-specific criteria, and discrimination by reference to them is, other things being equal, sex discrimination. But other things are not necessarily equal. Both EU and domestic law recognise that special treatment for women who are pregnant or on maternity leave may be legitimate. Thus, as we have already seen, section 2 (2) of the 1975 Act excludes from the definition of discrimination cases of "special treatment afforded to women in connection with pregnancy or childbirth". The real issue on this appeal is whether the present case falls within the scope of that exclusion. Eversheds' case is that the treatment of Ms. Reinholz about which the Claimant complains was a clear instance of "special treatment" in connection with her maternity absence (which is of course an aspect of "pregnancy or childbirth"): in fact Mr Cavanagh submitted not simply that there was a "connection" but that Eversheds were positively required as a matter of law to give Ms. Reinholz the score that they did. Eversheds also relied on section 5 (3) of the Act, on the basis that the obligation to afford special protection to Ms. Reinholz would mean that the Claimant's circumstances and hers were materially different; and indeed Mr. Cavanagh initially put it ahead of section 2 (2) in his submissions. But he eventually accepted that the underlying point was the same; and it seems more appropriate to focus on section 2 (2), which is directed specifically at the situation which Eversheds say arose in the present case, rather than on the more general terms of section 5 (3).

The Relevant EU and Domestic Legislation

1. Although ultimately the outcome of the appeal must turn on the effect of section 2 (2), it is best to start with the position under the relevant directives, and the case-law relating to them, since the domestic legislation must of course be construed, so far as possible, so as to give effect to EU law.

1. The approach of the EU legislators has been to treat measures protecting pregnant employees, or those who have recently given birth, as a matter falling within the scope of health and safety legislation. Accordingly the Equal Treatment Directive (76/207/EEC) (to which we will refer as "the 1976 Directive") originally contained no provision specifically directed at their protection, though in due course the ECJ – first in Dekker v Stichting Vormingscentrum voor Jong Volwassenen [1992] ICR 325 and then in Webb v EMO Air Cargo (U.K.) Ltd [1994] ICR 720 – held that discrimination on the grounds of pregnancy was to be regarded as discrimination on the grounds of sex. However, the Directive sought to ensure that its terms could not be deployed in order to undermine measures aimed at the protection of such employees. Article 2.3 provided:

"This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity."

(At that time there was no such EU legislation: the "provisions" in question would have been domestic.) It is convenient to mention here the decision of the ECJ in Hofmann v Barmer Ersatzkasse [1985] ICR 731, as an early exposition of the purpose of article 2.3. A father claimed that he was being discriminated against because he was not eligible for a state payment during paternity leave, whereas the child's mother would have been eligible for such a payment during her maternity leave. The Court held that the father could not compare himself with the mother because paid maternity leave "falls within the scope of article 2 (3) … inasmuch as it seeks to protect a woman in connection with the effects of pregnancy and motherhood" (see para. 26 of the judgment). (We note in passing that the reasoning appears to confirm – cf. para. 13 above - that there was no conceptual difficulty about the father bringing a sex discrimination claim: the question was whether such a claim was excluded by article 2.3.)

1. Specific protection for pregnant workers and those with young children was first introduced at EU level by the Pregnant Workers Directive (92/85/EEC). We need not rehearse the details of its provisions here. We note that article 10 prohibits the dismissal of workers who are pregnant or on maternity leave "save in exceptional cases not connected with their condition which are permitted under national legislation", but Mr Cavanagh did not suggest that this provision would have rendered it unlawful to dismiss Ms. Reinholz for redundancy if she had been selected on criteria which did not put her at any disadvantage by reason of her pregnancy or absence on maternity leave.

1. The 1976 Directive was amended in 2002. The previous article 2.3 became the first paragraph of a new article 2.7, which reads:

"This Directive shall be without prejudice to provisions concerning the protection of women, particularly as regards pregnancy and maternity.

A woman on maternity leave shall be entitled, after the end of her period of maternity leave, to return to her job or to an equivalent post on terms and conditions which are no less favourable to her and to benefit from any improvement in working conditions to which she would be entitled during her absence.

Less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85 EEC [i.e. the Pregnant Workers Directive] shall constitute discrimination within the meaning of this Directive."

1. The 1976 Directive and various associated directives were consolidated by a "re-cast" Directive (2006/54/EEC) ("the 2006 Directive"). But since the 2006 Directive took effect from 15 August 2009 counsel were agreed that it was the (amended) 1976 **Directive which was applicable in the present case - though in fact, as one would expect, there appear to be no substantive differences between the two.

1. We turn to the domestic legislation. Like the 1976 Directive, the Sex Discrimination Act 1975 did not originally contain any provisions specifically addressing the protection of pregnant women and employees with young children, though the House of Lords duly followed the ECJ in Webb v Emo in holding that dismissal on the grounds of pregnancy constituted discrimination within the meaning of section 1 (1) (a) of the Act: see [1995] ICR 1021. In 2005 the Act was amended by the introduction of a new section 3A, headed "discrimination on the ground of pregnancy or maternity leave". As originally enacted, sub-section (1) read as follows:

"In any circumstances relevant for the purposes of a provision to which this sub-section applies, a person discriminates against a woman if –

(a) at a time in a protected period, and on the ground of the woman's pregnancy, the person treats her less favourably than he would treat her had she not become pregnant; or

(b) On the ground that the woman is exercising or seeking to exercise, or has exercised or sought to exercise, a statutory right to maternity leave, the person treats her less favourably than he would treat her if she was neither exercising nor seeking to exercise, and had neither exercised nor sought to exercise, such a right."

In 2008 section 3A was amended by removing the italicised words. That was done because it had been held in Equal Opportunities Commission v Secretary of State for Trade and Industry [2007] ICR 1234 that the requirement of a comparator imposed a requirement not present in the Directive. The result is clumsy, since "less" is a word of comparison and logically requires a comparator (we note in fact that in the EOC case the reformulation preferred by counsel for the Commission was "unfavourably" - see para. 47 (at p. 1254E)). However, since the amendment was intended to dispense with such a requirement, section 3A must in its present form be understood to proscribe any act, done on the specified ground, to the woman's disadvantage – or "detriment", to use the familiar term from other parts of the anti-discrimination legislation.

1. Parliament was not content with addressing the question of discrimination against pregnant employees and those on maternity leave via the 1975 Act but also introduced provisions into the employment protection legislation. Section 47C of the Employment Rights Act 1996, read with reg. 19 of the Maternity and Parental Leave etc. Regulations 1999, provides that:

"(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.

(2) A prescribed reason is one which is prescribed by regulations made by the Secretary of State and which relates to –

(a) pregnancy, childbirth or maternity,

(c) ordinary, compulsory or additional maternity leave,

(ba)-(d) …

(3)-(4) …"

Section 99 likewise, when read with reg. 20 of the 1999 Regulations, renders unfair any dismissal for a prescribed reason.

The Submissions

1. It was, as we have said, Mr. Cavanagh's case that Eversheds were positively obliged to accord Ms. Reinholz the maximum score with regard to lock up. His argument was that, since the possibility could not be excluded that if she had remained at work she would have performed sufficiently well to score the maximum, any lesser score would mean she might have lost out by reason of her absence on maternity leave. He referred us to a number of cases which showed that the ECJ is rigorous in interpreting the requirements of the directives so as to exclude a possibility of disadvantage to pregnant employees or those with young children: see in particular Tele Danmark A/S v Handels-og Kontorfunktionaerernes Forbund i Danmark [2001] IRLR 853, Busch v Klinikum Neustadt GmbH [2003] IRLR 625 and Land Brandenburg v Sass [2005] IRLR 147. But those cases were very different on their facts, and since they were only cited as illustrations of the ECJ's general approach we need not consider them in detail. There were, however, two cases on which he relied more particularly - Thibault v Caisse Nationale d'Assurance Vieillesse des Travailleurs Salariés [1999] ICR 160; and Abdoulaye v Régie Nationale des Usines Renault SA [2001] ICR 527. We take them in turn.

1. In Thibault employees were entitled to an annual assessment of their performance to decide whether they were entitled to "advancement on merit": this is described at some points in the judgment as "promotion", though it seems in fact to have been more in the nature of a pay increment. No more than 40% of the employees in any grade could receive "advancement on merit" in any year. In order to qualify for an assessment it was necessary that the employee should have been at work for at least six months in the year in question. The applicant did not qualify for an assessment – and thus was deprived of the opportunity to achieve "advancement" – as a result at least in part of being absent on maternity leave. The ECJ held that she had been subject to discrimination contrary to the Equal Treatment Directive. The matter is not reasoned in any detail, but para. 29 of the judgment reads (so far as material) (at p. 176 G-H):

"… In circumstances such as those of this case, to deny a female employee the right to have her performance assessed annually would discriminate against her merely [sic] in her capacity as a worker because, if she had not been pregnant and had not taken the maternity leave which she was entitled, she would have been assessed for the year in question and could have therefore qualified for promotion."

The conclusion of the judgment, at para. 32, reads:

"It must therefore be held that a woman who is accorded unfavourable treatment regarding her working conditions, in that she is deprived of the right to an annual assessment of her performance and, therefore, of the opportunity of qualifying for promotion as a result of absence on account of maternity leave, is discriminated against on grounds of her pregnancy and her maternity leave. Such conduct constitutes discrimination based directly on grounds of sex within the meaning of Directive 76/207."

Mr Cavanagh submitted that Thibault showed how an employer was obliged to accord more favourable treatment to an employee on maternity leave in order to see that she did not lose out by her absence.

1. In Abdoulaye the employers operated a scheme under which female employees who were absent on maternity leave received a lump sum payment of FF7,500 in addition to the continuation of their ordinary remuneration. Their male colleagues brought proceedings claiming an equivalent amount under article 119 of the EEC Treaty, i.e. by way of equal pay. The Court dismissed the claim on the basis that women on maternity leave suffered a number of identifiable disadvantages as a result of their absence – such as loss of opportunity for promotion, non-entitlement to performance-related salary increases and loss of training opportunities – which differentiated their position from that of the applicants, and that a compensation payment which was "designed to offset [those] occupational disadvantages" could not be regarded as discriminatory (see para. 20 of the judgment). Abdoulaye does not decide that the employer was obliged to make the payments in question; and it is to that extent a case of a different kind from Thibault. But what it does decide is that payments made with the requisite purpose cannot be relied on by male colleagues as the basis of a claim of discrimination. In effect, although article 2.3 had no direct application (since equal pay fell outside the scope of the 1976 Directive), the Court applied the same approach as a matter of general principle.

1. Mr Cavanagh also relied on the decision of this Tribunal in Community Task Force v Rimmer [1986] ICR 491. In that case a redundancy situation arose while the applicant was absent on maternity leave. She was dismissed. She claimed unfair dismissal pursuant to section 45 (3) of the Employment Protection (Consolidation) Act 1978 – the terms of which now constitute reg. 10 of the 1999 Regulations – which required an employer in such a situation to offer the affected employee at her return to work date any "suitable available vacancy". It was her case that there was such a vacancy but that she had not been offered it because the employer was dependent on funding from the Manpower Services Commission ("the MSC"), and its policy required it to offer the vacancy to a person who was long-term unemployed: if that policy had been disregarded it would have lost MSC funding. This Tribunal, Peter Gibson J. presiding, upheld the decision of the industrial tribunal that the considerations relating to the MSC were immaterial: the job was "available", and the fact that the employer might be seriously prejudiced by offering it to the applicant made no difference. Counsel for the employer submitted "that the statutory scheme relating to maternity leave was intended to protect the position of the woman who is temporarily absent for maternity reasons, but not to improve it" (see at p. 496H); but it was held that that could not affect what this Tribunal believed was the ordinary meaning of the statutory words. Mr. Cavanagh submitted that this was a further illustration of an employer being positively obliged to treat a female employee more favourably on account of a maternity absence.

1. Mr. Popplewell accepted Mr Cavanagh's broad proposition that Ms. Reinholz would have been treated unlawfully if no arrangements had been put in place to see that she did not lose out in the application of the scoring system through her absence on maternity leave. But he submitted that any such arrangements should go no further than was necessary to achieve that aim. He relied on the principle of proportionality. He pointed out that the relevance of that principle in applying article 2.3 had been specifically endorsed, albeit on very different facts, by the ECJ in Johnston v Chief Constable of the Royal Ulster Constabulary [1987] ICR 83. The applicant in that case was a female reserve police constable who had not had her contract renewed because the Chief Constable's only continuing need was for armed officers and it was his policy that women officers should not be armed. The issue was whether such a policy was contrary to the 1976 Directive. The Chief Constable sought to rely inter alia on article 2.3. The Court held that it did not assist him. It described article 2.3 as a "derogation" from the principle of equal treatment (see para. 41 of its judgment). Dealing with such derogations generally, it said at para. 38 (pp. 104-105):

"It must also be borne in mind that, in determining the scope of any derogation from an individual right such as the equal treatment of men and women provided for by the directive, the principle of proportionality, one of the general principles of law underlying the Community legal order, must be observed. That principle requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view … ."

1. Adopting that approach, Mr Popplewell in his skeleton argument identified three ways in which Ms Reinholz's right not to be put at a disadvantage as a result of her absence on maternity leave could have been more proportionately protected, and specifically without giving her the positive unfair advantage over the Claimant produced by the method which Eversheds chose. These were as follows:

(a) they could simply have omitted the lock up criterion for both candidates and relied only on the other assessment criteria;

(b) they could have assessed the performance of both as regards lock up by scoring them as at the date when she was last at work; or

(c) they could have given her the average score achieved by the others in the pool – in this particular case, where she and the Claimant were the only candidates, that would have meant giving her the same score as him.

Those alternatives are not quite the same as those suggested by the Claimant during the redundancy consultation: see para. 9 above. In particular, alternative (c) seems to be a different kind of "averaging" from what the Claimant had proposed – and, it seems to us, a less good one. The point may have some significance since we were told by Mr. Popplewell, and Mr. Cavanagh accepted, that Eversheds had since the present case adopted an "averaging" approach in place of the approach of simply giving the absent employee the maximum score; but it was not clear to us exactly what kind of averaging was involved. But, whatever the answer, Mr. Popplewell was entitled to, and did, make the point that it was curious that Eversheds were arguing in the present case that they were legally compelled to follow a course which they had themselves since abandoned.

1. Mr. Cavanagh's response was that none of those alternatives would reliably have prevented Ms. Reinholz from being disadvantaged as a result of her absence on maternity leave. None of them recognised that that absence necessarily deprived her of the opportunity of performing sufficiently well during the period leading up to 31 July to earn the maximum score: that lost opportunity had to be recognised, and since there was no way of objectively quantifying it the only way that it could be made certain that she had not lost out was to accord her the maximum. That might seem unfair to the Claimant, but the principle of protecting employees on maternity leave took priority. He took on the chin the point about Eversheds' subsequent departure from the policy adopted in the present case: he said simply that they were right first time round and wrong now.

Discussion and Conclusion

1. In considering those submissions, our starting-point is that we fully accept that the protection of the special position of employees who are pregnant or on maternity leave may sometimes require them to be accorded treatment which is more favourable than that accorded to their colleagues (other women as well as men). That is self-evidently correct as a matter of principle and is explicitly acknowledged by article 2.3 (subsequently article 2.7) of the 1976 Directive. Precisely how any such right would be vindicated in terms of the domestic legislation would depend on the circumstances of the case; but we are content to assume for present purposes that by one route or another section 3A of the 1975 Act or sections 47C or 99 of the 1996 Act would provide a remedy. Thibault and Abdoulaye do indeed illustrate this principle, inasmuch as Mme. Thibault obtained an assessment – and thus a chance of an additional payment – without having to comply with the conditions applicable to other employees, and M. Abdoulaye's comparators received a lump sum payment which was not available to him. A further example which featured in the argument before us came from the argument in the EOC case (above) (see paras. 43 (iii) and 46): a pregnant employee might be expected to be entitled to more frequent toilet breaks than would be allowed to a non-pregnant colleague. (It may be debatable whether Community Task Force v Rimmer is authority for the same point, but that does not matter if the point is good.)

1. However, we accept Mr. Popplewell's submission that the obligation in question cannot extend to favouring pregnant employees or those on maternity leave beyond what is reasonably necessary to compensate them for the disadvantages occasioned by their condition. (We use the term "reasonably necessary" in the sense that it is understood in this field, i.e. as requiring the application of the proportionality principle: see the helpful summary of the relevant law in paras. 23-24 of the judgment of Sedley LJ in Allonby v Accrington and Rossendale College To the extent that a benefit extended to a woman who is pregnant or on maternity leave is disproportionate, we see no reason why a colleague who is correspondingly disadvantaged should not be entitled to claim for sex discrimination. This seems to us correct as a matter of principle; but we would draw support if necessary from the passage in Johnston relied on by Mr Popplewell. The only justification for treating the woman more favourably is the need to see that she is not disadvantaged by her condition, and where the treatment in question goes beyond what is reasonably necessary for that purpose a real injustice may be done to a colleague. Quite apart from the matter of principle, it is important not to bring into disrepute the legislation which protects pregnant women and those on maternity leave by giving it a wider scope than is properly required.

1. We do not believe that this approach is inconsistent with the decisions of the ECJ in Thibault or Abdoulaye. The issue of proportionality simply did not arise in those cases. There was nothing evidently disproportionate in Mme. Thibault being given an assessment, and the corresponding possibility of an additional payment, on the basis of less than six months' work. It appears from para. 2 of the Advocate General's opinion (p. 162B) that she had worked 152 days in the year in question, and he clearly assumed that she would at least have done sufficient work to allow a valid assessment to be carried out: see para. 34 of his opinion (p. 170 A-B). The case would clearly have been different if she had asked for an assessment on the basis of, say, a single week's work. Indeed, if Mr. Cavanagh's argument were correct, she would have been entitled not simply to an assessment but to the payment of an increment (to the potential detriment of a working colleague because the pool was finite) on the basis that if she had been working for the whole period her performance might have been good enough to earn one. Still more extreme variants of the argument could be postulated. Likewise, in Abdoulaye, while the sum of FF7,500 was inevitably arbitrary, because the precise loss could not be measured, there was no suggestion that it was not broadly proportionate to the kinds of disadvantage that the women might be expected to have suffered by their absence: had the sum been FF75,000, or FF750,000, very different issues would have arisen. Nor does Community Task Force v Rimmer advance the argument at this stage: nothing in the reasoning of Peter Gibson J. is material to the question of proportionality.

1. The question therefore is whether the means adopted by Eversheds to resolve the problem caused by Ms. Reinholz's absence as at the measurement date which would otherwise have applied were proportionate. In our view they were not. They went beyond what was reasonably necessary. We agree with Mr. Popplewell, and indeed with the Claimant himself in his contemporary representations to Eversheds, that there were alternative ways of removing the maternity-related disadvantage to Ms. Reinholz without unfairly disadvantaging the Claimant. In our view the most satisfactory alternative was to measure the lock up performance of both the candidates for redundancy as at the last date that Ms. Reinholz was at work. We do not accept that that approach deprived her of some opportunity to which she was legitimately entitled to show her paces specifically in the period leading up to 31 July 2008. It is important not to lose sight of the purpose of the measurement exercise: it was designed to shed light on (one aspect of) the capability of the employees who were candidates for redundancy. There is no magic in the date at which the measure is taken: it was no doubt natural to take it at the most recent convenient date, but there is no reason to believe that a measure at a somewhat earlier date would be any less reliable as an indication of whatever qualities it is which produce good lock up performance. Ms. Reinholz would have lost no legitimate advantage in having her performance measured for the last period at which she was at work and would have had no cause for complaint if that course had been taken (on the basis, of course, that the Claimant's performance was measured for the same period). What she was entitled to was to be scored for lock up performance, notwithstanding her maternity absence, on a basis that reflected her performance/capability; and the "earlier date" alternative would have achieved that.

1. We return at last to section 2 (2). As we have said, it should be construed so far as possible so as to conform to the underlying principles of EU law in this field as discussed above. In our view it follows from those principles that it is necessary to read the words "special treatment afforded to women in connection with pregnancy or childbirth" as referring only to treatment accorded to a woman so far as it constitutes a proportionate means of achieving the legitimate aim of compensating her for the disadvantages occasioned by her pregnancy or her maternity leave. Although purely as a matter of language it might be arguable that it went further and applied to any more favourable treatment of a woman which was in fact – however unreasonably or excessively - accorded to her because she was pregnant or had given birth, it seems to us necessary to construe it in a manner which incorporates the principle of proportionality. Mr. Cavanagh objected that that meant that we were writing words into the sub-section. We do not accept that that is a proper description: we are doing no more than construing its effect.

1. Mr. Cavanagh emphasised the difficulty of the position of an employer in a case like the present, facing the risk of a claim whichever course he chooses. No doubt an interpretation of section 2 (2) which protected employers from liability in respect of any advantageous treatment afforded to women who are pregnant or on maternity leave, however excessive or unfair to their colleagues such treatment might be, would provide a more distinct "bright line". But the price would be too high. The well-tried and familiar proportionality principle seems to us to strike the right balance. It is a flexible principle, which in an appropriate case will allow a wide margin of discretion to employers as to the appropriate special treatment to be accorded to pregnant employees and those on maternity leave, particularly where such advantages are not directly at the expense of their colleagues and do not cause them serious prejudice. Captious claims by male colleagues who resent the proper protection given to pregnant women and mothers can expect short shrift. But the present case is not of that kind: the disproportionate advantage to Ms Reinholz meant a direct and unfair corresponding disadvantage to the Claimant.

1. For completeness, we would repeat that if section 2 (2) of the 1975 Act cannot assist Eversheds nor can section 5 (3). The relevant circumstances in the Claimant's case and Ms. Reinholz's would only be materially different if it was indeed necessary as a matter of law to accord her a notional maximum score, which we have held that it was not.

1. In our view, therefore, the Tribunal was right to hold that by giving Ms. Reinholz a notional maximum score while confining him to his own actual score Eversheds unlawfully discriminated against the Claimant on the grounds of his sex. In reaching this conclusion we have not thought it necessary to analyse the details of the Tribunal's reasoning. It clearly found the case difficult: there was an interval of seven months between the hearing and the final decision, during which it circulated draft Reasons and sought further submissions – and there are, with respect, some clear errors in the details of its reasoning. Nevertheless, its broad reasoning accords with ours; and in any event the issue is one which does not depend on any question of fact or assessment which is peculiarly within the province of the Tribunal, and there is in our view only one right answer on the facts as found.

UNFAIR DISMISSAL

1. We turn to the question of unfair dismissal. The Tribunal dealt with this very briefly at para. 6.2 of the Reasons, as follows:

"It follows that if we take the view that the score was unfairly inflated, it was not within the range of reasonable responses and therefore it was not only a case of discrimination against the Claimant on the grounds of sex but also unfair dismissal."

1. Mr. Cavanagh submitted that that reasoning was wrong. He contended, though very much by way of fallback, that even if we were to uphold the Tribunal's finding on sex discrimination it did not follow that the Claimant's dismissal was unfair. Eversheds had been faced with a very difficult legal situation and had made a reasonable, albeit ex hypothesi wrong, attempt to comply with what it understood to be its legal obligations to Ms. Reinholz. Since they had acted reasonably, the dismissal ought to be held to be fair, applying section 98 (4) (a) of the 1996 Act.

1. This issue is not in fact straightforward. We agree that in principle the question of unfair dismissal should have been considered separately by the Tribunal and not treated as automatically determined by the outcome of the sex discrimination claim, even though typically a discriminatory dismissal will also be an unfair dismissal. In general, no doubt, the question under section 98 (4) has to be answered by reference to the employer's reasonable belief, even if that belief can be shown to have been mistaken: that is trite law in the case, for example, of dismissals for misconduct. And there is certainly a line of cases that applies that approach in the case of a mistaken belief by the employer about his legal obligations: see in particular Bouchaala v Trust House Forte Hotels Ltd [1980] ICR 721 and London Borough of Hounslow v Klusova [2008] ICR 396, where the employer dismissed the employee in the reasonable but wrong belief that it would be unlawful to continue to employ him or her – though it may be material that in both those cases the employer was misled by the immigration authorities. But it does not seem to us obvious that the same result should follow in every case where the employer has in his own deliberations taken a view, which has turned out to be wrong, of the extent of his legal obligations: is it reasonable, having regard to equity and the substantial merits of the case, that the employee should bear the consequences of the employer having got the law wrong, even if the mistake could not be characterised as unreasonable ?

1. This general issue was not in truth addressed before us, no doubt because if the Claimant has succeeded in his sex discrimination claim the unfair dismissal claim adds very little. However, we have come to the conclusion that it is not necessary to enter these deep waters in order to decide the issue of unfair dismissal in this particular case. We do not believe that it was reasonable for Eversheds to believe that they had no alternative to maintaining a maximum lock up score for Ms. Reinholz, unrelated to any actual assessment of her merit, when it became clear that that would be decisive in the choice between her and the Claimant. The result was patently unfair to him, and he suggested the very alternative which we have held would indeed have been lawful. We also take into account the fact that Eversheds have themselves not continued to apply the very approach which they claimed at the time was the only one consistent with their legal obligations.

1. Accordingly we dismiss the appeal against the finding of unfair dismissal.

**REMEDY**

1. Eversheds have two grounds of appeal, which we take in turn.

GROUND 1

1. It was Eversheds' case before the Tribunal that if the Claimant had not been dismissed when he was he would have been made redundant nine months later in any event. The Real Estate Investor Team had been disbanded following his dismissal and Ms. Reinholz had joined a team described as the "Occupiers Team". A redundancy exercise took place in September 2009, as a result of which two of the five associates in that team, including Ms. Reinholz, were made redundant. Eversheds adduced evidence from Mr. George Bacon, a partner in their Real Estate Practice Group (of which the Occupiers Team formed part) to the effect that, if the Claimant had been retained instead of Ms. Reinholz, he would probably, applying the criteria used in that exercise, had been selected for redundancy on that occasion. It was submitted that that should accordingly represent the limit of the period for which he should be compensated, or in any event that any loss thereafter should be substantially discounted on Polkey principles, as recently confirmed by the decision of the Court of Appeal in Abbey National Plc v Chagger [2010] ICR 397.

1. The Tribunal dealt with that argument very shortly. At para. 4.16 of the remedy Reasons it said this:

"Unfortunately the Respondent's witness today, George Bacon, who was in charge of the process and had to make a value judgment on the Claimant's practice group priority/specialism, had not worked with the Claimant for some time and the remainder of the apparent scores for the Claimant had been derived from historical data assembled by the Respondent's Human Resources Team. Until this hearing the Claimant had no opportunity (unlike those involved) to question these assessments, which the Respondent is now saying limits the Claimant's right to compensation. Indeed Mr. Bacon described the process in his evidence as speculative."

Its conclusion, at para. 5.2.6, is as follows:

"We do not feel that it is appropriate to reduce the award either because of what may or may not have happened to the Claimant, either at the time of his original dismissal or at the time of the second round of redundancies. There is insufficient evidence to assist us to do so."

(The phrase "either at the time of his original dismissal or …" is something of a puzzle, but it is in any event irrelevant for present purposes.) On that basis it went on to award the Claimant compensation for loss of earnings up to the date of the remedy hearing and for two years thereafter.

1. In our view the Tribunal's reasoning is plainly unsatisfactory. It says that that there was "insufficient evidence" to enable it to carry out a Polkey exercise. That statement needs unpacking. There was cogent evidence that if it was the Claimant rather than Ms. Reinholz who had survived in January 2009 he would have been, as she was, transferred to the Occupiers Team and would thus have been part of the redundancy exercise in September 2009. Mr. Bacon said so in his witness statement, and the evidence is indeed tacitly accepted by the Claimant in his witness statement in response. This is, therefore, not a case of some wholly speculative future contingency: the redundancy exercise really happened. The real question is what was the chance of the Claimant being made redundant in that exercise. Mr. Bacon in his witness statement carried out an elaborate exercise designed to show that the (necessarily) hypothetical score which, as best as he could estimate it, the Claimant would have received would have led to him scoring less than the actual scores of at least three of the others in the pool. We do not understand on what basis that evidence can be said to be "insufficient", in the sense of not requiring the Tribunal to consider it at all. It might be unconvincing, or flawed; but if so it was the duty of the Tribunal, as part of its obligation to give reasons, to engage with the evidence and explain why it did not accept it, rather than dismissing it in limine.

1. We rather suspect that the Tribunal was seduced into abandoning its proper course, as tribunals still too often are, by the siren word "speculative", which at para. 4.16 it quotes from Mr. Bacon's own evidence. "Speculative" is not a dyslogistic term in this field. The trouble starts with the decision of the Inner House in King v Eaton (no 2) Ltd. [1998] IRLR 686, which appears, at least on one reading, to say that tribunals when invited to make discounts for future contingencies should decline to engage in speculation: another much quoted phrase from the judgment of Lord Prosser is his reference to being unable "sensibly [to] reconstruct the world as it might have been". But the Court of Appeal in Thornett v Scope [2007] ICR 236 counselled against too wide a reading of King v Eaton. At paras. 36-37 (pp. 244-5) Pill LJ said:

"36. The appeal tribunal appear to regard the presence of a need to speculate as disqualifying an employment tribunal from carrying out its statutory duty to assess what is just and equitable by way of compensatory award. Any assessment of a future loss, including one that the employment will continue indefinitely, is by way of prediction and inevitably involves a speculative element. Judges and tribunals are very familiar with making predictions based on the evidence they have heard. The tribunal's statutory duty may involve making such predictions and tribunals cannot be expected, or even allowed, to opt out of that duty because their task is a difficult one and may involve speculation. Giving judgment in the leading case on loss of earning capacity, Moeliker v A Reyrolle & Co Ltd [1976] ICR 253, an important head of damage in personal injury cases, Stephenson LJ when seeking words to define the correct approach to be followed stated, at p 265: "I avoid 'speculative' because this head of damages can really be nothing else."

1. When Lord Prosser, in King v Eaton Ltd (No 2) [1988] IRLR 686, para 19, spoke of making decisions "with more or less confidence" he was not saying that a prediction could only be made when confidence was complete; on the contrary, he contemplated prediction when there was "less" confidence. As already stated, however, there may come a point, at which evidence of countervailing factors is so slight that an indefinite continuation of the employment may be held to be an appropriate prediction."

In Software 2000 Ltd. v Andrews [2001] ICR 825 Elias P reviewed the previous authorities (which include alsoLambe v 186K Ltd. [2005] ICR 307 and Gover v Propertycare Ltd, adding, at para. 38 (p. 832 E-H), his own note of caution against reading King v Eaton too expansively. In his summary of the relevant principles, at para. 54, he said this (p. 836 B-F):

"(1) In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future.)

(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

(4) Whether that is the position is a matter of impression and judgment for the tribunal. But in reaching that decision the tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.

**

…

(7) Having considered the evidence, the tribunal may determine: (a) that if fair procedures had been complied with, the employer has satisfied it - the onus being firmly on the employer - that on the balance of probabilities the dismissal would have occurred when it did in any event: the dismissal is then fair by virtue of section 98A(2); (b) that there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly; (c) that employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in O'Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615; (d) that employment would have continued indefinitely. However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored."

We have to say that sometimes in our experience tribunals take on board point (3) without any or sufficient regard to point (4) or to the final sentence of point (7): for a recent example see Virgin Media Ltd v Seddington (UKEAT/0539/08).

1. The other two features of Mr. Bacon's evidence which the Tribunal mentions at para. 4.16, and perhaps – though this is unclear – relied on in concluding that the evidence was insufficient, are (a) that Mr. Bacon had no recent personal experience of the Claimant's work and (b) that the Claimant "had no opportunity … to question" the assessment which formed part of Mr. Bacon's exercise. Those may both be reasons for treating Mr. Bacon's evidence with caution but they do not, at least as stated, constitute reasons for rejecting it out of hand.

1. In short, the fact that two out of the five members of the team into which the Claimant would have been moved, had he survived in January 2009, were made redundant nine months later clearly created a case to answer that any compensation for loss of earnings beyond that date should have been discounted to reflect the risk that the Claimant would have been one of those dismissed. The Tribunal has failed to address that contention and the case must be remitted for that purpose. It is not for us to say what the outcome should be. In principle, it would be open to the Tribunal to find that Mr. Bacon's evidence about how the Claimant would have fared was so flawed that no reliance could be placed on it, though any such conclusion would need to be properly explained. But even in that case, and a fortiori if Mr Bacon's evidence is taken into account (though not necessarily accepted in its entirety), the Tribunal will have to reach a conclusion as to whether there was a sufficiently substantial chance that the Claimant would have been one of the two who were made redundant in October 2009, and arrive at an appropriate discount to reflect that chance. Reasons will have to be given for that conclusion; but of course it is well recognised that an exercise of this kind inevitably involves a large element of impression, and a nice evaluation of the various factors involved may not be realistically possible.

1. For the avoidance of doubt, the only issue to be remitted is whether the Claimant's claim for loss of earnings should be capped or discounted by reference to the chance that he would, if retained, have been dismissed in the September 2009 redundancy exercise. A case management conference is likely to be useful: Eversheds will no doubt continue to rely on Mr. Bacon's evidence, but we note that the Claimant complained that he did not have sufficient opportunity to consider that evidence and call evidence in rebuttal, and it may be that in those circumstances further directions may be required.

1. On balance we believe that the issue should be remitted to a different tribunal. The refusal of the original Tribunal to engage at all with Mr. Bacon's evidence might engender a reasonable suspicion on Eversheds' part that it had committed itself to a view about it (albeit unarticulated) which it would be difficult for it to shed second time round. And even if that point is not overwhelming, the advantages of having the issue heard by the same tribunal are not very great. The issue cannot safely be decided by reference to the notes of evidence taken over a year previously, so a hearing would be required in any event. The point is short and self-contained and would not necessarily take much longer before a fresh tribunal. (We are also told that Employment Judge Shulman only sits part-time, which might lead to delay in fixing a hearing if we remitted the case to the same Tribunal.)

Ground 2

1. Eversheds plead that the Tribunal made an arithmetical error in its calculation of future loss. For the final year's loss it accidentally took the figure for the (lesser) income that it estimated that the Claimant would be earning rather than the difference between that figure and what he would have been earning had he remained at Eversheds. This mistake makes a difference of some £13,609.63.

1. The Claimant accepts that the Tribunal erred in this respect, and so do we. Since we are remitting the issue of quantum in any event we need not alter the Tribunal's order; but to the extent that these figures remain relevant following determination of the remitted issue the Tribunal will need to incorporate this correction.

**CONCLUSION**

1. The appeal on liability is dismissed. The appeal on remedy is allowed and the case remitted to a fresh Tribunal.

1. We regret the time taken to produce a decision in this appeal, which is principally the result of the pressure of other cases in this Tribunal.