Direct sex discrimination occurs where a person directly discriminates against an employee where, on a prohibited ground (i.e. sex), he treats them less favourably than he treats or would treat another. Both men and women can be protected.
Difficulty can arise in circumstances where a woman has received “special treatment” in connection with pregnancy or childbirth. The 2010 Act provides that “special treatment afforded to a woman in connection with pregnancy or childbirth” must be disregarded for the purposes of direct sex discrimination (section 13(6)(b).
However, in the case of Eversheds Legal Services Limited v De Belin  IRLR 448, the EAT held that an employer, who inflated an employee’s score in a redundancy selection exercise because she was on maternity leave, discriminated against a male employee on the grounds of sex. It was held that the right to special treatment afforded to women in connection with pregnancy or childbirth must be read as protecting employers only where treatment is a proportionate means of achieving the legitimate aim of compensating a woman for the disadvantages occasioned by her pregnancy or her maternity leave. In this case the special treatment afforded to the female employee was disproportionate in that it was more favourable treatment than was reasonably necessary to compensate the comparator for the disadvantages that arose due to the woman’s pregnancy. There were less sex discriminatory alternatives which the employer could have applied such as measuring both employees' actual performance during the period before the start of the woman’s maternity leave.
The problem for employers is that in attempting to avoid discriminating against pregnant employees, they can find themselves the subject of discrimination claims by men. Employers must therefore always ensure that any steps taken are proportionate and would not cause serious disadvantages to other employees.