A case has recently caught our eye as it shows that good intentions may not prevent a company from losing an Employment Tribunal. The case involved a firm of solicitors who treated a woman favourably simply because of her maternity leave. Presumably it did this with the best of intentions but the result was that in doing so it sexually discriminated against a man. The case involved a solicitor working at the well known national firm of solicitors, Eversheds. The solicitor is male and was awarded £123,300 in sex discrimination compensation against the firm. However, that amount is subject to change as the Employment Appeal Tribunal ordered that the compensation awarded be reconsidered by a new tribunal.
There were two solicitors of a particular grade working in a particular field and in a particular office. One was male, one female. The female employee was on maternity leave. Both were at risk of redundancy as the firm had decided that only one solicitor was needed in that office in that area of work. A performance based scoring matrix was used to determine who would be dismissed. One of the criteria used was how quickly the solicitors could get their clients to pay the bills.
As the female was on maternity leave she hadn’t been at work during the period which was to be tested. The law broadly speaking on this area prevents the woman being put at a disadvantage by being on maternity leave. She would have been disadvantaged if the firm had used her actual performance of the relevant measure over the intended time. This was because her ‘score’ would not have been able to be calculated because she wasn’t at work. There were a number of things the firm could have done to prevent this disadvantage. One of these would have been to measure her actual performance over a period when she was actually at work. Instead of doing this the law firm made the decision to give her the maximum two marks for this criterion.
However, the male solicitor, John De Belin, successfully claimed that the firm’s decision to allow the woman to score the maximum two marks on that particular criterion was sex discrimination. On this criterion, he had scored less than the maximum. The overall result was, when the other criteria were taken into account, that he scored half a point less than she did. This resulted in her being kept on whilst he was dismissed.
The Tribunal commented that the firm had incorrectly interpreted the law and sex discrimination compensation. The law provides that a woman on maternity leave should not be disadvantaged but should not, in this context, be advantaged. Where a woman would be otherwise disadvantaged by one part of a scoring matrix, because of not having been there at the relevant time, the disadvantage should be removed by testing the criterion over a different period i.e. when she was there or that disadvantage removed in some other way. The process of removing the disadvantage should not, however, place her at an advantage over others in the pool.
The original version of this article was written before Eversheds appealed to the EAT. It has done so and so we are now able to update this article to take into account that judgement. Previously we were concerned about the impact on the De Belin case of the special provision protecting women on maternity leave who are at risk of redundancy. The law is that a woman on maternity leave at risk of redundancy has a right to preferential treatment in that she has a right to be offered any job that is both available and suitable for her to do. There is a separate article on this website about this subject. There are two different interpretations of this area of law on the circumstances of this case. Those circumstances are common – the number of jobs are being reduced and one or more of the jobs are being retained. One interpretation is that there is at least one vacancy and the woman is entitled to be offered it regardless of scoring or even perhaps on the basis that she does not need to be scored. The other interpretation is that there is no vacancy, as those that score the most retain their jobs and thus when the scoring has been completed there is no vacancy to be offered to the woman on maternity leave. The De Belin EAT judgement seems to be the first appeal court judgement on this important subject. It was delivered on 6 April 2011. The judgement provides much-needed clarity. It does mention the ‘suitable alternative job’ law (which is Regulation 10 of the Maternity and Parental Leave etc. Regulations 1999).
What the EAT judgement says is this: the right to preferential treatment in a redundancy situation under Regulation 10 does not mean that the woman should be given preference in a conventional redundancy selection exercise. She would be given preference if she was not selected for redundancy regardless of the outcome of any selection exercise undertaken by the employer. The case says that in such a case, if this happened and she was retained in preference to a male employee who had better scores in the selection exercise, the result would be sex discrimination against the male employee.
The EAT, in this case, did not directly address the question – is there a vacancy when there is a scoring exercise between existing jobholders? However, its decision that the woman can’t be given preferential treatment in any scoring exercise shows fairly firmly that the EAT’s view is that there is no vacancy. This would appear to be the case when the number of jobs are being reduced via a redundancy selection pool exercise. This case does not expressly deal with the situation where all jobs are going but there are a number of alternative vacancies for different jobs. In these cases, there is still much legal commentary about suggesting that the woman is entitled to be given one of the new job vacancies regardless of whether there might be a more qualified man (or woman). Unfortunately, this area of law is still unclear and for the moment the De Belin judgement is all we have to go on.
We would be happy to advise any company on this area of law further and to deal with any discrimination claims that may be brought. As such, on this, or any other employment law issue, please do not hesitate to contact Steen & Co Employment Solicitors.