Inflating redundancy score of female employee on maternity leave found to be sex discrimination against male colleague

It is discrimination against a man to inflate the redundancy scores of a female colleague just because she is on maternity leave.

The Facts: Belin –v- Eversheds Legal Services Limited

Mr de Belin was employed as an associate at Eversheds Legal Services Ltd (Eversheds). In July 2008 it became apparent that redundancies would be required in his department (Real Estate). Mr de Belin and a colleague, Ms Reinholz, were scored against five redundancy criteria. One of the selection criteria, financial performance, included a score for "lock-up". This measured the time it took a lawyer to finish work and receive payment from the client; more points being awarded where there was a quicker turnaround. Eversheds used a reference period of the 12 months to 31 July 2008 to calculate respective lock-up. The maximum score was 2 and Mr de Belin was awarded 0.5. However, during this chosen reference period, Ms Reinholz was on maternity leave. Eversheds decided therefore to award her a notional score of 2. Overall, Mr de Belin had 27 points and Ms Reinholz had 27.5. Mr de Belin was put at risk of redundancy in September 2008.

Mr de Belin raised issues of unfairness in the lockup scores during the consultation process. He pointed out that if Ms Reinholz had been measured in the period immediately before she went on maternity leave, she would have scored 0.5. Despite raising a grievance and an appeal, Eversheds did not find in his favour and Mr de Belin was dismissed as redundant. He lodged a claim for unfair dismissal and sex discrimination. Mr de Belin argued that by artificially inflating Ms Reinholz’s score by 1.5, Eversheds had treated him less favourably because of his sex – put another way, but for her maternity leave, Ms Reinholz would not have scored 2 and she, rather than he, would have been chosen for redundancy.

The Decision

Under UK sex discrimination laws it is unlawful to treat and woman or a man less favourably on the grounds of their sex. However, under the Sex Discrimination Act 1975 (SDA) (which follows EU law on this issue), it is not sex discrimination to give “special treatment” to women in connection with pregnancy or childbirth. One example of “special treatment” in UK law is Regulation 10 of the Maternity and Paternity Leave Regulations 1999, which effectively gives a woman on maternity leave priority, in a redundancy situation, in relation to suitable alternative vacancies. However, did the concept of “special treatment” extend to cover inflating redundancy scores?

The tribunal decided that Mr de Belin had been discriminated against on grounds of his sex and also that he had been unfairly dismissed. The application of the lock-up criteria was unreasonable and also constituted less favourable treatment on grounds of sex. Although Ms Reinholz was on maternity leave during the lock-up reference period used, Eversheds should have done more to ensure the two employees were fairly treated; for example, by avoiding using lock-up altogether or used a different reference period. It is expected Eversheds will appeal this decision.

Practice Points

This case is important as it raises two important issues: (1) what selection criteria should an employer use during a redundancy exercise and (2) how should employers treat employees who are pregnant or on maternity leave in such circumstances. It looks at issues specifically based on pregnancy and maternity but also touches on overall issues of fairness in a redundancy selection process.

Employers should think carefully when considering redundancy selection criteria. Whilst employers are entitled to choose criteria which reflect its on-going business needs, it must choose criteria which are fair and non-discriminatory. Look at reference periods, ensure that scores do reflect the true picture of a person’s performance, avoid criteria which are subjective and ensure that the process is moderated. The fact that there were actual ways in which Ms Reinholz could have been scored against the relevant criterion fairly was probably why the decision went against the employer. Employers should not assume that "giving the benefit of the doubt" to an employee on maternity leave will be the safest option. Employers should assess the possible ways in which the unfairness of a maternity absence can be mitigated, rather than automatically favouring the female employee above others (except where the law requires it i.e. when offering suitable alternative employment).

Unhelpfully, there is no clear definition in the SDA of what constitutes "special treatment"; however, the Tribunal did say it did not mean blanket protection for women. As the Tribunal stated "it cannot have been the intention of Parliament in enacting SDA to give rights not to be discriminated on the grounds of sex to men with one hand and then with the other to immediately take those rights away in all possible eventualities where pregnancy and childbirth are concerned". Where Eversheds failed was in giving Ms Reinholz a score which did not reflect her past performance, this undermined the fairness of the selection and therefore the redundancy process overall.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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