The Employment Appeal Tribunal (“EAT”) has upheld a tribunal’s decision that a law firm discriminated against a male lawyer on the ground of his sex when, in a redundancy selection exercise, it inflated the score of a female colleague who was on maternity leave.
In September 2008, Mr de Belin and Ms Reinholz, who was on maternity leave at the time, were placed at risk of redundancy by their employer, Eversheds. To decide which of the two would be made redundant they were scored against five performance criteria. One of those criteria was “lock-up” which measures the length of time between a piece of work being undertaken and receipt of payment from the client. Mr de Belin received 0.5 points the lowest possible score for this criterion. Ms Reinholz was given the maximum score for this criterion, 2 points, because she was on maternity leave.
Overall, Mr de Belin scored 27 points and Ms Reinholz scored 27.5 points. Mr de Belin was therefore selected for redundancy. Mr de Belin raised a grievance protesting that what had happened was unfair and constituted sex discrimination. Mr de Belin pointed out that if Mr Reinholz’s “lock-up” had been measured with reference to the period immediately before she went on maternity leave she would also have scored 0.5 points and would have ended up with an overall score lower than his. Mr de Belin argued that Eversheds had discriminated against him by artificially inflating Ms Reinholz’s score. Eversheds said their approach was required by law in order to ensure that Ms Reinholz did not lose out by her maternity absence and thus to avoid the risk of a sex discrimination claim from her.
Previous employer appealed tribunals decision
Mr de Belin succeeded in his direct sex discrimination and unfair dismissal claims before an employment tribunal. Eversheds appealed to the EAT on both liability and remedies.
The EAT upheld the tribunal’s decision that Mr de Belin had been discriminated against and unfairly dismissed. However, it upheld Eversheds’ appeal on remedies and that issue was remitted to a fresh tribunal.
The EAT held that owing to their special position, employees who are pregnant or on maternity leave sometimes need to be treated more favourably than their colleagues. However, they cannot be favoured more than is reasonable necessary to compensate them for the disadvantages occasioned by their condition. Therefore, any action taken to favour an employee who is pregnant or on maternity leave should be a proportionate means of removing the woman’s disadvantage.
The EAT held that Eversheds’ solution to the redundancy selection difficulties caused by Ms Reinholz’s maternity absence was not proportionate. As Mr de Belin had argued in his grievance, there were alternative, less discriminatory ways of removing Ms Reinholz’s maternity-related disadvantage. For example the “lock-ups” of both candidates could have been measured as at the last date Ms Reinholz was at work.
During the case Eversheds emphasised how difficult it is for employers who in attempting to avoid discrimination against pregnant women could end up facing sex discrimination claims by men. In light of the EAT’s decision, employers should not assume that giving the benefit of the doubt to an employee on maternity leave is the safest option in trying to avoid potential claims. Employers should assess the possible ways in which the disadvantages of a maternity absence can be mitigated, rather than automatically favouring the female employee.