Women on maternity leave do not always get “special treatment”

June 2010

The current economic climate has meant that most employers have had to consider making redundancies. Problems can arise when those who are potentially at risk of redundancy are pregnant or on maternity leave. In de Belin -v- Eversheds Legal Services Limited, the Leeds Employment Tribunal had to decide whether a male lawyer had been discriminated against on the grounds of his sex when in the redundancy scoring exercise, the employer inflated the score of his female colleague because she was on maternity leave.

The facts

Mr de Belin (“B”) was employed as an associate in the real estate department of Eversheds Legal Services Limited (“Eversheds”). In July 2008, Eversheds decided that there would be redundancies within the real estate group nationally. On 4 September 2008, during a meeting of the fee earners in the real estate group in Leeds, they were informed of the position and of a proposal to make one of the two associates in the investment team redundant. B was on holiday at the time but found out via a colleague about the situation and he was informed by telephone that he was at risk. On 15 September 2008, B was invited to a consultation meeting on 16 September 2008.

Prior to the employees being put “at risk” a scoring exercise had been carried out against selection criteria. The selection criteria included “financial performance”. “Financial performance” was split into 5 sub-categories which included “lock-up”. “Lock-up” was defined as the period of time measured in days between the undertaking of a piece of client work and the receipt of payment from the client. The quicker the turnaround between undertaking the work and being paid, the more points were awarded. The lowest mark that could be awarded was 0.5 with the maximum being 2 points. The measure was taken as a snap shot on 31 July 2008. At that time B’s lock up was over 160 days and he scored 0.5 points. Ms Reinholz, who was on maternity leave on 31 July 2008 and against whom B was scored, was not assessed for lock-up from actual data because no lock-up figure was available for her due to her absence. Eversheds maintained that the fairest approach was to allocate Ms Reinholz 2 points for lock-up because to give a different score was unfair as she was not at work to influence it. The effect of this was that B’s total score was 27 and Ms Reinholz’s score was 27.5. As a consequence B was put at risk of redundancy and Ms Reinholz was not.

On 16 September 2008, B attended his first consultation meeting. He questioned the basis of the scoring between himself and Ms Reinholz. On 30 September 2008, B queried the decision to give Ms Reinholz 2 points for lockup and suggested a different period for measuring her lock-up, namely an average taken in the 12 months immediately preceding her maternity leave. This would have yielded 0.5 points. B argued that but for maternity leave Ms Reinholz would not have scored 2 points for lock-up. B submitted a grievance alleging that he had been discriminated against on the grounds of his sex by virtue of Ms Reinholz being given an inflated score and him being put at risk of redundancy as a result. His grievance was rejected, as was his appeal. Following the conclusion of the grievance procedure the consultation process was recommenced and B continued to argue about the unfair application of the lockup criteria. However, he was ultimately dismissed on 12 February 2009, and did not appeal.

B brought claims for sex discrimination and unfair dismissal. The central issue was whether B’s right not to be discriminated against on the grounds of his sex could be taken away by the application of section 2(2) Sex Discrimination Act 1975 which provides for “special treatment” to be afforded to women in connection with pregnancy or childbirth.

The Leeds Employment Tribunal held that Eversheds had discriminated against B on the grounds of his sex and that he had been unfairly dismissed. The Tribunal held that although it is not clear what is meant by “special treatment”, given the purpose of the discrimination legislation, it could not be intended that women should be given blanket protection. The Tribunal considered that the expression “special treatment” includes all the rights where statutory provision has provided preferential treatment for pregnant women and those on maternity leave i.e. the rights to return to work and not to be unfairly dismissed on the grounds of pregnancy or childbirth.

Practical impact?

This case has been decided at Tribunal level and is therefore not binding on other Tribunals. However, it raises the serious issue of how far sex discrimination law provides “special treatment” to pregnant women or those on maternity leave. The Tribunal considered that there is no blanket protection afforded to women with these characteristics in a redundancy situation. More importantly, the employer cannot hide behind the “special treatment” provision to depart from principles of equal treatment to men. The Tribunal was clearly influenced by the fact that there were other reference periods which Eversheds could have used to measure lock-up and that Eversheds was keen to avoid Ms Reinholz’s bringing employment claims against it should she have been dismissed.

This case may well be appealed. However, employers should be careful not to give women on maternity leave priority when devising and applying selection criteria in a redundancy situation. Employers should always ensure therefore that the criteria adopted are as objective as possible and applied consistently across the chosen pool.